§ Order for Second Reading read.
§ 11.5 a.m.
§ Mr. Robin Corbett (Hemel Hempstead)
I beg to move, That the Bill be now read a Second time.
This is not an attempt to update the Sexual Offences Act, as the law on this is being reviewed by the Criminal Law Revision Committee. In case there should be doubt of the need for the Bill, I would point out that in 1974, the last year for which figures are available, there were about three cases of rape a day recorded as known to the police—a total of 1,052. While there has been an increase in the number of reported rape cases, the figures have not risen as fast as for other types of violent crime.
In 1974, 410 cases of rape were tried before Crown courts, and in 317 cases the defendants were found guilty. That leaves roughly two cases a day known to the police which did not result in a Crown court trial. I do not blame the police for this, and the reasons for it are hard to find. The only guide I have, and it is random, is from the evidence sent to me under confidential assurance by about 60 women. Let them speak.
One woman wrote:I did not come forward because I was 16 at the time and still at school. I did not want to get into trouble with the school and my parents.800 Another woman wrote:I was threatened that my child, who was with me, would be hurt if I didn't do what he wanted, so as the law stands, the man could argue that I consented.Another said:I thought that if I reported it and went to court, no one would want to marry me.Another, to underline the importance of anonymity, wrote:I was frightened of the publicity and of not winning the case as I did not scream for help or physically struggled.That touches on the central point of consent and belief.
Yet another woman wrote:I did not think the jury would believe my story because I didn't struggle, except at the beginning, because he was in a foul mood and I thought I might be strangled.Another said, on the publicity point:I thought that I would seem to the other boys to be second-hand or unclean, or, worse still, to be 'fair game'.Those are just some of the extracts from a tragic postbag and in simple words seem to me to underline the importance of putting the Heilbron recommendations into law as soon as possible.
The need to deal in a new and better way with the problems arising from rape cases is what has led to the Bill, to the debate in the last Session of Parliament and to the setting up of the Advisory Group on the Law of Rape under the distinguished chairmanship of Mrs. Justice Heilbron. I want to add my tribute to that of the Home Secretary for the care, compassion and speed with which the Group reported.
I should like also to add my warm support to this comment in paragraph 6 of the Report:To Mr. Jack Ashley we owe a particular debt of gratitude, for it was through his humane concern and his efforts in Parliament and elsewhere that public interest was aroused.I think that we would all say a loud "Hear, hear," to that and to those outside the House who helped my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) in his campaign. It was my hon. Friend, more than anyone else, who helped me to make up my mind on my choice of Private Member's Bill.
I also wish to extend my thanks to those organisations which allowed me to 801 see their written evidence to the Heilbron Group, to the National Council for Civil Liberties for its interest and assistance, and especially to those women who answered my appeal for letters, which brought in a sad postbag but one which has given me better insight into this terrible topic.
My hon. Friend the Member for Stoke-on-Trent, South, more than anyone else, can take the credit for the setting up of the Heilbron Group after the House of Lords decision in the case of the Director of Public Prosecutions v. Morgan and Others, which gave rise to great concern but also to some misconceptions. That decision was widely interpreted as a "licence to rape" or a "rapist's charter." It was not. When that view is endorsed by bodies usually as far apart as the Criminal Bar Association and the National Council for Civil Liberties, not to mention the Heilbron Group, we should listen to what is being said.
In the Morgan case the House of Lords affirmed the view that the crime of rape consisted of having sexual intercourse with a woman with intent to do so without her consent, or recklessly failing to ensure consent. It said that if the accused genuinely believed that the woman had consented, whether or not that belief was based on reasonable grounds, he could not be found guilty of rape because the existence of such a belief did not prove what the Heilbron Group called "the guilty mind". That is a technical point, though one of great importance and one which, if the Bill is given a Second Reading, deserves to be explored in Committee.
However, the Heilbron Group reached the conclusion, which the Government support, that the decision in the Morgan case has led to misunderstandings which should be cleared up, although the Group felt that the decision in that case was correct. As Mr. J. C. Smith, a leading authority on criminal law, says in the February issue of the Criminal Law Review:If the report"—That is the Heilbron Group Report—is implemented it will affirm everything that was decided in Morgan but will effect important reforms in the law and evidence applicable in rape trials which were in no way in issue in that case.802 The Group recommended that legislation should define "rape". Paragraph 18 of the Heilbron Report says:There is no modern definition of the crime of rape and although it is an offence under Section 1 of the Sexual Offences Act 1956, the statute contains no attempt at a definition. The traditional common law definition, derived from a seventeenth century writer and still in use, is that rape consists of having unlawful sexual intercourse with a woman without her consent, by force, fear or fraud.The Heilbron Group recommended that:Legislation should define 'rape' in particular to bring out the special importance of recklessness as a mental element of the crime"—what the Group called the guilty mind"—and to emphasise that the absence of consent is the essence of the criminal act.The Group also thought that legislation should include a declaratory provision in those cases where the accused's belief that a woman consents to sexual intercourse is a matter that the jury must consider.
The Group also made proposals to make it less difficult—not easy, because it can never be that—for a woman to report an alleged rape to the police and, thus, to soften the distress to the complainant. The recommendations relate in the first place to evidence and cross-examination about the complainant's private sex life. The Group found that under present practice a woman could often be subjected to hurtful and irrelevant cross-examination about her previous sexual history, on the seeming assumption that because the woman had had, for example, an abortion, or an illegitimate baby, or was even held to be promiscuous, that somehow excused the rape or, worse, suggested that rape was not possible against such a women. This current attitude does nothing to advance the course of justice, and the Heilbron Group concluded that restrictions should be placed upon such cross-examination. Its view was that this could be done only by direct regulation.
The Heilbron Group also recommended that the complainant should be anonymous. It found this necessary because the disclosure of a rape victim's name caused her great distress and also tended to discourage women from reporting alleged rape. That is borne out in the postbag to which I have referred. The Group 803 did not recommend similar anonymity for defendants in rape cases because, as is set out in paragraph 177 of the Report:The only reason for giving him"—that is, the accused—anonymity is the argument that he should be treated on an equal basis. We think it erroneous to suppose that the equality should be with her"—that is, the complainant——it should be with other accused persons and an acquittal will give him public vindication.That is a telling and carefully considered argument and, on balance, I decided to go along with it, although if the Bill is given a Second Reading I hope that we can explore the matter in Committee, because there are strong and valid arguments for the opposite point of view.
§ Miss Jo Richardson (Barking)
Has my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) seen the assertions in today's Sun newspaper? If he has, will he comment on the anonymity aspect?
§ Mr. Corbett
Yes, I have. The Sun shines at the trivial but always gets facts wrong when it deals with serious matters. The leading article to which my hon. Friend the Member for Barking (Miss Richardson) referred is a demonstration of that.
Rape is a controversial subject. We are often in the most private world of two people and have to understand that not all alleged rapes are the result of violent assault or the threatened use of force, such as the stranger knocking at the door or waylaying a girl on her way home from a dance.
We must tread carefully, because my postbag suggests that allegations of rape can arise from previously non-sexual relationships, where the man goes too far and persuades himself in the passion of a moment that "No" means "Yes". However, we now have a chance to remove the fear from the minds of women that for too long the attitude to rape has been based on the unspoken belief that, in the end, no woman will refuse the sexual advances of a dominant man and that "No", whatever the circumstances in which it is said, is simply a "tease" and that women never mean it.
804 However, perhaps put more simply, one benefit of the Bill will be to increase the respect for women and for their right—because that is what it is—to say "No" and to be understood to mean "No". The Bill aims at implementing the major proposals of the Heilbron Group while acknowledging that there is important detailed work for the Standing Committee.
One recommendation that is not included in the Bill is that there should be a minimum of at least four women on the 12-strong jury to achieve—if I may paraphrase the Heilbron Group—a better balance of the sexes. Put another way, this is perhaps an intent to build suspected bias into the jury to counter what has been held to be the general bias against women on rape juries. Together with several of my sponsors, I am cautious about this idea because it would interfere with the supreme importance, in our legal system, of the random selection of juries. Once this door has been opened I have worries about to where it may lead. My mind and the minds of my sponsors are not closed on this matter. That also applies to the Bill's other provisions. I hope that if the Bill is given a Second Reading the Committee will consider this point.
§ Mr. W. R. Rees-Davies (Thanet, West)
The proposal with which the hon. Member for Hemel Hempstead (Mr. Corbett) deals is the one to have at least four women and four men on any jury of 12 persons. At the time Rose Heilbron reported it was fairly common to find few ladies at the Old Bailey and in other courts. Today, if the hon. Gentleman makes inquiries, he will find that there is almost a superfluity of ladies available at the Old Bailey and other courts, because the selection of juries has changed greatly. Will he recognise that provided there is a reasonable balance of men and women on a jury, that is all that is needed? Surely he will agree that if anonymity is to be given during a trial to the complainant, it should also be given to the accused?
§ Mr. Corbett
I am grateful to the hon. and learned Gentleman for his remarks. I accept absolutely that there are now more women available for jury service. I know of a case that was heard in the last few months where, on random 805 selection—and that must be preserved—five women were chosen to sit on a jury of 12.
The hon. and learned Gentleman raised the matter of anonymity for the accused unless convicted. As I have already said, I am persuaded at present to the view that the Heilbron Report took on this matter. However, I have acknowledged that there are strong and valid arguments in favour of this. It opens a new principle on the basis that the Heilbron Group was implying—that rape is a unique and particular crime to a woman. It is said in the Report that the comparison is not between the man and the woman at the trial but between the man accused of rape and the man accused of other serious offences. I know that my spensors want to include this provision in the Bill. It is certainly something that the Committee should discuss.
I should like to turn quickly to the Bill's main provisions. Clause 1 deals with the meaning of rape and follows the first two recommendations of the Heilbron Report. It is not intended as a complete description of the offence in such a way as to codify all the existing case law, as codification of the law on sexual offences is necessarily a lengthy process. This is being undertaken by the Criminal Law Revision Committee. However, it does provide a clearer restatement of the law.
Subsection (1) defines rape, bringing out the two points stressed by Heilbron: that is, the importance of recklessness as a mental element in the crime—what Heilbron called "the guilty mind"—and the fact that lack of consent is the crux of the criminal act. Subsection (2) consists of the declaratory provision that will apply whenever the jury at a trial for rape has to consider whether the defendant believed that the complainant was consenting to sexual intercourse at the time of the alleged offence. It emphasises that when the issue is whether a man is speaking the truth when he says that he believed the woman was consenting, the presence or absence of reasonable grounds for this belief must be considered by the jury along with any other relevant matters.
This is not a change in the law; it is a much-needed restatement of it, which I think will do a lot to remove the present 806 misunderstandings of the judgment in the Morgan case.
The purpose of Clause 2 is to restrict the freedom of the defence to call evidence or cross-examine complainants about their sexual history—a point on which I have received many letters. The aim is to exclude this form of attack on the complainant whenever it would amount to little more than "mud slinging". The sexual history of the complainant with the defendant is not excluded, as this is likely in many cases to be relevant. With the leave of the judge, other evidence and cross-examination is allowed, provided the judge is satisfied that it is so relevant that it would be unfair to the defendant to exclude it.
I pause here to say that a tightrope has to be walked in this area: while trying to give added protection to women who are making allegations of rape, we should do nothing by this measure which would take away the rights of the defendant.
However, where the main purpose of seeking leave is to show that the complainant behaved in accordance with her sexual disposition, the test of relevance is further narrowed in subsection (3), under which there must be shown to be a striking relationship between the way the complainant is said to have behaved on the occasion of the crime and her previous sexual history. This is identical with the test that the Heilbron Group recommended and is another much-needed safeguard for women.
The test of unfairness to the defendant where the purpose of calling the evidence is not to show the complainant's disposition is not dealt with expressly in the Group's Report, but is consistent with its principles and is necessary to cope with a few cases that might arise—for example, where the accused argued that the complainant was said to be having sexual intercourse with another man at the time of the alleged rape.
Clause 3 applies the provisions of Clause 2 to committal proceedings, courts-martial and summary trials.
Clause 4 provides that, exceptional circumstances apart, complainants shall be anonymous in written publications and broadcasts about trials for rape offences.
A defendant may apply to a Crown court judge for the restrictions to be 807 lifted. Permission will be given only if he can satisfy the judge that the particulars need to be made public in order to trace witnesses for the defence and that otherwise the defence would be substantially prejudiced. This is a recommendation from the Heilbron Group.
There is also power in the clause to remove or relax the restrictions if they would impose a substantial and unreasonable limitation on the reporting of the trials, contrary to the public interest. Breach of the restrictions is punishable, on summary conviction, by a fine of up to £500.
Clause 5 provides protection against prosecution for trivial breach of the restrictions on publication or broadcasting in that proceedings may not be taken without the consent of the Attorney-General. It also provides a defence for people who are not aware, and who neither suspected nor had reason to suspect, that the publication or broadcast contravened the restrictions. An example of this, perhaps, would be in the case of a whole newsagent.
Clause 6, among other things, applies the provisions of the Bill, as the Heilbron Group suggested, to attempted rape, aiding, abetting, counselling and procuring rape or attempted rape, conspiracy to rape and incitement to rape.
Rape is the most obscene four-letter word in the dictionary of a woman. It is a unique offence by a man against a woman. It is the ultimate humiliation that a man can enforce upon a woman.
This Bill will not prevent rape. It will not make it easy for a woman who has suffered this appalling ordeal to report it. What I hope it will do is to make it less difficult to report and, without taking away any rights from the defendant, give added protection to the growing numbers of women to whom this vilest of crimes will become a terrifying reality.
§ 11.26 a.m.
§ Sir George Young (Ealing, Acton)
This Bill is a commendable example of the way in which the Royal Commissions, tribunals, committees of inquiry and the like can be used as instruments of progress rather than as excuses for delay. The Heilbron Group was appointed in July last year. It reported in November. 808 Here we are, in February, seeking to give legislative effect to its recommendations.
The House is indebted to the hon. Member for Hemel Hempstead (Mr. Corbett) for this opportunity to debate this matter. I wonder what would have happened to the Heilbron Report if it had not been for his initiative and good fortune in the Ballot. It might have been a year, or a year and a half, before the Government found time and we got around to debating it, as with the Finer Committee's Report. It might have joined the pile of dust-covered reports in the "In" tray of the Leader of the House, awaiting debate.
This is a fine example of the way in which progress can be made by the use of Commissions. I hope that the Government will take note of the speed with which we have sought to give legislative effect to the recommendations in the Bill, of which I am proud to be one of the sponsors.
The number of convictions for rape has doubled in the last 10 years. It has risen from 169 in 1965 to 343 in 1974. It is, therefore, a crime that is increasing at a disturbing rate. Moreover, there is widespread belief, to which the hon. Gentleman referred, that the actual incidence of rape is much higher than the number of convictions. This is referred to in the Report, at paragraph 153, which says that the deterrent effect of current procedure surrounding rape prevents prosecutions from taking place. The hon. Gentlemean adduced his own statistics in showing the discrepancy between reported incidents and convictions.
While many hon. Members may stress the importance of revising the law so that it reflects public attitudes concerning the relevance of a woman's previous sexual history to any given rape case, many others, particularly on the Opposition side of the House, are interested in the way in which the Bill may increase the conviction of rapists. A few months ago we all saw how, in the city of Cambridge, one lone rapist could strike terror into the hearts of all women, of whatever age, and how it completely changed the life-style of every woman living in that city. The man has been convicted since, but might he not have been found a little earlier if the law on rape had been different, and if some of 809 the earlier victims had had a greater incentive to report the crime and had not been deterred from taking action by the many factors mentioned by the hon. Gentleman?
Relevant to the wish behind the Bill to increase the number of convictions for rape is a changed police procedure, mentioned in paragraphs 192 and 194 in the Report. Here in its Report the Group draws attention to the unfortunate experiences of many women when they reach the police station after having been raped. This is not an appropriate matter for legislation, but perhaps the Minister could tell the House whether he intends to issue guidelines to the police to give effect to some of the very sensible recommendations in Section 7 of the Report.
The Bill was very adequately introduced by the hon. Gentleman. I hope that it will be supported by those who speak in the debate I am proud to be one of the Bill's sponsors, and I commend it to the House.
§ 11.30 a.m.
§ Mr. Jack Ashley (Stoke-on-Trent, South)
I thank my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) for his kind personal tribute to me, which I greatly appreciate. I also thank him for accepting the Bill after winning the Ballot and for presenting it so admirably, and for putting forward his case so cogently and eloquently. I believe that many hon. Members will be grateful to my hon. Friend for bringing forward this subject today, because a number of hon. Members have been actively concerned with the subject for a long time.
In addition to congratulating my hon. Friend, I pay tribute to the many women in the country who have made their voices heard on the issue of trying to reform the law relating to rape. In some quarters there has been a great deal of complacency about the law relating to rape. But it is the women of Britain, both individually and through their organisations, such as the National Federation of Women's Institutes, who have spontaneously reacted against judicial decisions that were an affront to women. To my certain knowledge—because they were campaigning with me—they have tried to secure a change in the law for over 10 months, and some of them have 810 been seeking a change in the law for many years. It is those people to whom we should pay tribute today. Many of them have been scorned and called "Women's Libbers". In so far as they are attempting to correct an injustice, I believe that the House should be grateful to them.
Many of these women, their organisations, and I myself became actively concerned as a result of the case of the Director of Public Prosecutions v. Morgan, which was referred to by my hon. Friend. As a result of the decision in that case, a great deal of parliamentary and non-parliamentary activity took place, but the results were not wholly successful. The main effect was that the Home Secretary set up the Heilbron Group. We were delighted with the Report of that Group. If the House owes a debt to the women of this country and their organisations, it owes a special debt to Mrs. Justice Heilbron for one of the most cogently argued and splendid reports I have ever seen.
The Heilbron Report took rape seriously, which is far more than some people do. For example, Mr. Christmas Humphreys, who has now retired as a judge—I do not want to make any attacks on judges today—freed a self-confessed double rapist who assaulted women at knife point. When the judge retired a few weeks ago he made some rather fatuous references to the crime of rape.
What my hon. Friend said this morning is sufficient to prove that there is nothing fatuous about it. In my view, rape is a vicious and a violent crime which degrades and demeans its victims. It scars the body and it scars the mind—and nowhere is the mind more scarred than in a court of law.
There is a danger that because there is great public interest in the crime of rape some of the more sensational aspects of the problem will be seized upon by some people. I hope that the House will bear with me in discussing some of the central issues relating to the law. I am glad to see present hon. Members on both sides who are interested in precisely these problems.
If the Bill is enacted, it will be the first time in history that the crime of rape has been placed, by definition, on the statute book. There has never been a 811 definition of the crime of rape. I believe that this definition, although it does not go quite as far as I would like, will be a vast improvement on the prevailing obscurity of the law.
Obscurity is a lawyers' paradise. It has been fascinating, recently, to see so-called brilliant lawyers convincing themselves that on the question of reasonable belief that a woman consented there is no obscurity; they say that it is quite clear what the law says.
The fact is that lawyers have argued for many years about what the law really says. The whole issue has been argued at one level with the decision one way, and at a different level with a different decision, right up to the Law Lords. If the law is as clear as some lawyers would have us believe, there would have been no reason for the issue to go to the Law Lords. My hon. Friend the Minister of State will be able to enlighten the House about the clarity of the law, but if it is so clear I suggest that there would be no need for the convoluted arguments that we have heard in the courts for a number of years.
I believe that the definition proposed in the Bill will do a great deal to clarify the issue. Mrs. Justice Heilbron wanted to do exactly that. That is what we are going to get. Although it will still be conceivably possible for a woman to be sexually assaulted and for her assailant to get off scot-free because he claimed genuine, although unreasonable, belief in her consent, I believe that it will be less likely than before as a result of the Bill. So I believe that it is of profound importance.
I move on now to a number of other issues, because there is not only the issue of the consent claim by a man in a court of law. Innocent victims—women who have been raped—suffer character assassination at the hands of enthusiastic defence lawyers in the courts. Their past sexual history is often used to prove that they are untruthful rather than unchaste.
Lack of chastity is not a crime. Whatever people may think, whether it is good or bad, it is not a crime. Lack of chastity has no necessary connection with lack of truthfulness. I share the view of the Heilbron Group, which felt 812 that excluding a woman's sex history, apart from exceptional circumstances, would reduce the court ordeal of victims and encourage them to come forward and help to apprehend the guilty. I believe that by excluding this irrelevant evidence we shall make it easier for juries to arrive at a true verdict.
On the issue of anonymity, I go all the way with my hon. Friend about the giving of anonymity to women, but I part company with him on the question of anonymity for men. Both my hon. Friend and Mrs. Justice Heilbron said that men should not be given the cloak of anonymity. I believe that women and men should be treated on an equal basis during the trial—that both the woman who is making the accusation and the man who is accused should be anonymous until a conclusion has been reached in a court of law.
I believe that a man who is accused of rape and is acquitted is much less likely to be believed by the public than one who is accused of, say, murder. The reason for this is the prevailing social attitude towards rape. I believe that a man needs anonymity, because a man is much more likely to be charged with rape when he is innocent than he is to be charged with murder, because the former is a one-to-one situation, without corroborative evidence.
The chances of a man being accused of rape when he is innocent are far greater than the chances of a man being accused of murder when he is innocent. I am not making any evaluation of that fact, but the House ought to take it into account. Because of the special nature of rape, the publicity given to a person involved in a trial for rape is in itself a serious punishment, and it is a situation in which the stigma is not completely erased by a verdict of "innocent" it the man is named.
The main provision of the Bill will ensure that from now on women will be enabled to go to a court of law to make complaints with far greater freedom in the future than they could do in the past. The fear of publicity is terrifying to a woman who has already been assaulted. The fear of having her sexual history dragged out publicly is daunting for any woman. And now that the law of rape is clearly defined we shall all be free to examine this issue with far less 813 concern for the complexity of the problem than in the past.
I commend the Bill warmly to the House, but I would add that in Committee it may be considered necessary to add further provisions because there are many aspects of the problem of rape which have not been touched upon. It may be that in Committee other questions which are of great importance to women will be dealt with. Given that qualification, I warmly commend the Bill to the House and I congratulate my hon. Friend on having introduced it.
§ 11.42 a.m.
§ Mr. Norman Miscampbell (Blackpool, North)
As someone who has changed his mind over the past year on this matter, I give the Bill a welcome and I congratulate the two hon. Members opposite who have spoken—first, the hon. Member for Stoke-on-Trent, South (Mr. Ashley), whose enthusiasm and passion during the past year alerted me to the fact that here was a matter which had to be considered and I could not hold on to my hitherto strongly-held view that rape was simply another crime which should be dealt with on that basis and that the law would be mistaken if it took an exceptional course in this crime.
I am therefore very pleased to see the hon. Gentleman here today, and I congratulate him. It was not his legal arguments on his previous Bill which convinced me, because I thought they were wrong, but that does not matter. The important point is that he has alerted my mind to the problem. I congratulate also the hon. Member for Hemel Hempstead (Mr. Corbett) on choosing this Bill to introduce today. He is also to be congratulated on having the great advantage of the Government putting pen to paper on his behalf and helping him in drafting the Bill.
As it is clear that in Committee the Bill will be subject to a great deal of discussion and, possibly, amendment, I commence my comparatively brief remarks by saying that there are one or two things which I am glad the Bill does not do. A view was expressed in reputable legal circles that the crime of rape should be abolished as a separate crime. I think that would have been a great mistake. Rape as such is a well-established 814 crime in the public mind. People understand what is meant by it. The abhorrence that the public feel is represented by the very word "rape" itself. I think we were right not to attempt to change the whole basis of the crime of rape but to keep it as a separate crime.
I am also pleased that Mrs. Justice Rose Heilbron and her Advisory Group recommended, and the Bill recognises, that we do not need to change the law so far as rape is concerned. I think that what lawyers call mens rea, the belief that the woman had consented, is a proper defence if it is properly conducted in court.
Having said that, however, it is worth noticing that the Bill strengthens the position in Clause 1(2), and it adds words in subsection (1)(b) which, I would have thought, strengthened the definition of rape:at that time he knows that she does not consent to the intercourse or"—these are the important words—he is reckless as to whether she consents to it.I have no doubt that it could be argued that that is in the law already.
The Minister of State, Home Office
(Mr. Alexander W. Lyon): Indeed it is. It is clearly stated in all the majority judgments.
§ Mr. Miscampbell
Yes, but here we have it set out, and I should have thought that in the directions which will go to juries in the future it will strengthen the position.
Another matter which the sponsors of the Bill were wise to leave out is the suggestion that there should be a statutory number of men or women on a jury. It has already been pointed out, and I think cogently, that in most jury trials there is likely to be found a reasonable balance—or in any case, if one wanted to achieve a balance and one thought it would help, it could be achieved because of the number of men and women available for jury service. However, that is not my objection. My objection is that a rule that there should be a statutory number of men on a jury might well mean that women empanelled on a jury would feel that they were protagonists on one side 815 or another as they had been selected because of their sex. I am sure we do not want that feeling imported into our law.
The sponsor of the Bill has pointed out the problem that a woman faces when she wishes to report the crime of rape. If she has been genuinely raped and she has done nothing to instigate that crime, it must be one of the most horrible moments that she can experience. It is only the beginning of what is, unfortunately, a very long process. She is taken to the police station. She is medically examined in the most intimate way immediately. The police have to be cautious in the extreme before proceeding, and she is asked difficult questions about her background, what she was doing, why she was there and so on. The police have to make sure that a wild allegation is not being made, and they inevitably have to carry out this distressing duty. It is a most unpleasant experience, and nothing in the Bill will change that.
Then there is a prolonged wait normally because of the delays in the courts, with which we are all familiar, before the woman goes to court, and once again she has to go through a very difficult cross-examination in public. Therefore, I welcome the recommendation by Mrs. Justice Heilbron that there should be protection for the complainant at the time of the trial. With regard to the defendant, I shall say a word in a moment.
It is not often understood how capricious reporting is. Some months ago—it may have been a year ago—there was an article in the New Scientist which dealt with the whole question of reporting. I have the figures here. I shall not trouble the House with them in any detail, but basically it appears that between one-quarter and one-third of rape cases in any given year are reported in the papers generally.
The number of cases of rape has been increasing. In 1951 119 cases came before the courts, in 1961 the number was up to 226 and in 1971 there were 358 cases. The hon. Member for Hemel Hempstead gave the House more recent figures than these. The figures are important only to show the amount of reporting. In 1951 28 cases were reported in the Press, in 1961 69 were reported and in 1971 91 cases were reported in newspapers. The figures show that between 816 one-quarter and one-third received publicity. The News of the World is the main reporter of rape cases on a national scale. It carried 22 rape reports in 1951, 46 in 1961 and 62 in 1971. Reporting is going up in the same proportion as the increase in rape. In 1971 the Daily Mirror reported eight rape cases, the The Times got round to reporting three, and the Evening Standard eight.
The reporting nationally of rape cases is not what matters. It is in the local paper where damage can be done. I am convinced that a case has been made to stop that reporting, not only to protect the women but also in the interests of justice. A woman is more likely to come forward if she knows that her case will not be reported. A restriction on reporting would ensure that people who had committed this foul crime were brought to the courts and, if appropriate, convicted.
I have only one query following that. In Committee we shall consider the Bill with care. I can see the purpose behind Clause 2—the question of the freedom of the complainant. I am prepared to go with the sponsors of the Bill when they say that there must be some protection, but perhaps it goes too far. If there is not to be reporting, one has gone a long way to cure the problem, but how does one achieve justice in a situation where a woman will not be adversely affected by what goes on in court? I wonder whether we have got the balance right in Clause 2. There are a number of situations in which it is relevant that the woman's character, how she was behaving and what she was doing should be revealed. I know that a judge has full discretion to allow examination to go wider if he thinks it necessary in the interests of justice.
We should be advised to consider Clause 2 carefully in Committee to discover whether we need to draw it so tightly. I say that with confidence, because I accept the view that the questions put must not be reported in the Press. I accept that a cloak of silence has to be drawn over the woman in her interests and in the interests of justice.
I commend the Bill to the House. Its progress through Parliament will be interesting. It may look slightly different at the end, but hon. Members on both sides hope that, however it might be 817 changed, the Bill will come through with its principles intact. It will mark a proper and welcome change in our law.
§ 11.55 a.m.
§ Mrs. Renée Short (Wolverhampton, North-East)
I add my congratulations to my hon. Friend for Hemel Hempstead (Mr. Corbett), who but for a few yards would be my own Member of Parliament. I hope that his Bill will have a speedy passage through its remaining stages. So far no hon. Members have spoken against it, although there have been slight reservations from both sides.
The hon. Member for Ealing, Acton (Sir G. Young) referred to the speed with which the Heilbron Report has been acted upon. I wish that similar speed had been shown in acting upon the Lane Report, which saw the light of day almost three years ago.
Rape is a serious, brutal and psychological assault on a woman. Apart from the physical damage that can be done—perhaps only women can appreciate the long-standing psychological damage that can ensue—rape can result in the terrible additional problem of an unwanted pregnancy. No one so far has referred to that. Very few men who are in the process of raping a woman will stop to take precautions against an unwanted pregnancy. One of the dilemmas that face us when considering this problem is that a consultant cannot wait for a rape case to be completed before he decides whether to end an unwanted pregnancy conceived in those conditions. If he waited, it would be too late.
Under existing legislation a consultant will assume that the woman has already suffered enough trauma and he will terminate the pregnancy. But the Abortion (Amendment) Bill would produce restrictions on a consultant's clinical freedom to decide how to treat a patient in those circumstances. The inclusion of the words "serious or grave" in the Bill could mean that it would not matter whether the woman had been truthful or not. The consultant could be severely hedged round in what he wished to do with a patient. He would have to agree that severe mental or physical injury had been done to his patient. This is 818 a word of warning to the House about the two matters, which are closely related.
The emphasis in the majority of cases that are reported, as the hon. and learned Member for Blackpool, North (Mr. Miscampbell) said, tends to be on the lurid aspects. There has been genuine public concern arising from the publicity given to the sentencing policies in some recent cases. According to D. A. Thomas in "Principles of Sentencing",The emphasis in the vast majority of cases of rape is firmly on deterrence; even where the offender is a young man of good character and the girl concerned has permitted some degree of familiarity, the Court has upheld sentences of imprisonment.More severe sentences are imposed where a group of men are involved in a joint or corporate rape.
Another category that is said to attract rather longer sentences is rape which is committed in the home of the victim following a break-in. Trial judges have said that crimes committed against housewives in their homes while going about their everyday business when their men-folk are away at work must be dealt with in such a way as to demonstrate that the law will always be concerned to protect people. However, if we consider a number of fairly recent cases we find that those words have not been followed.
For example, the defendant Taylor, who raped a widow of 76 after breaking into her house in the middle of the night, was gaoled for 10 years. Perhaps that is a rather severe sentence. Another rapist, Anderson, was sentenced to life imprisonment for raping a girl of 16 and indecently assaulting a widow aged 66. McGuffie, another rapist, was put on probation for two years. He was aged 18. He raped a mother of two children who was aged 21. Perhaps his sentence was rather light. A man who broke into a woman's home and meant to rape but did not was sentenced to three years' imprisonment.
More recently there was the case of Moving, a man aged 18. The case was heard by Judge Christmas Humphreys. Moving raped two women in their own homes. He pleaded guilty and was given a suspended sentence. The case caused a great deal of public concern, in my view rightly so. It caused my hon. Friends the Members for Stoke-on-Trent, South (Mr. Ashley) and Barking (Miss 819 Richardson) and other hon. Members to seek an interview with the Lord Chancellor. We felt that the case should be brought to the attention of the public. We felt that inconsistencies in penalties imposed by learned judges in certain serious and severe cases should be made known. We were not all suggesting that the learned judge should be removed from his job, but we felt that it was not out of order for learned judges to have regard to public opinion in these matters. That view was confirmed by the Lord Chancellor at a certain event that took place at the Mansion House some time later.
More recently there was a case concerning a young man who is a lance-corporal in the Army. In Committee perhaps we shall have the opportunity to consider the effect of the Bill on members of the Armed Forces. The lance-corporal pleaded guilty, as did Moving, to what was described as a merciless rape on a young girl. He was given a suspended sentence of six months after one of his commanding officers had said that he was a very good rugger player and another had said that he was a good soldier and should not be sent to prison. That seems an extra-ordinary judgment.
In many countries in Europe—for example, West Germany, Austria and Italy—and in the United States a member of the armed forces who is found guilty of rape is discharged. It might be wondered whether there is a special law in this country for members of the Armed Forces compared with some civilians.
I was glad to hear my hon. Friend say that he is prepared to consider in Committee the composition of juries in these cases on the recommendation of the Heilbron Committee. It is a fair proposal that there should be a minimum of four men and four women on a jury. I hope that in Committee we shall have an opportunity to consider the reasons which prompted the Heilbron Group to make that proposal and why certain people believe that it is not acceptable. I believe that it is acceptable on the ground of equality, as is the anonymity of the defendant.
A great deal of damage can be done to a man who is falsely accused of rape. If there is full publicity, there will always 820 be those who say that there is no smoke without fire. In that way a man's reputation can be severely damaged. On the ground of equality, it is correct to accept the recommendation that the woman should remain anonymous and that the defendant's name should be withheld until the end of the trial, and then disclosed only on the direction of the judge, assuming that the judge would do so only in cases where the defendant had been found guilty.
§ Mr. Miscampbell
It has been canvassed whether a judge should or should not have power to allow the name of the complainant to be made known in certain cases. I am sure the hon. Lady would agree that that is a matter which would have to be hedged in very carefully. Such information could be made known only in the event of a conviction. In any other circumstances we should be giving a judge the right to give subsidiary punishment when he felt that the accused had got off on a technicality. That would be very unsatisfactory.
§ Mrs. Short
I accept that that is a difficulty which will have to be considered. There are probably legal parallels where judges have that discretion. My hon. Friend the Minister of State might be able to give us some guidance.
It is distasteful for women to have to answer questions in court about their previous experience. We must remember that it is possible for a prostitute to be raped. One can think of circumstances in which a pimp, for example, can rape one of his women. It can be extremely prejudicial if a woman has to recount in court her previous sexual experience and her occupation.
I hope that my hon. Friend will explain Clause 4 (3). As I understand it, the subsection gives a judge power to relax restrictions on publicity regarding the complainant if he feels it is in the public interest so to do. I cannot bring to mind any cases where that might be desirable, but perhaps my hon. Friend, with his great experience, will be able to enlighten us.
I join those on both sides of the House who have wished the Bill a speedy passage through Committee. I congratulate my hon. Friend the Member 821 for Hemel Hempstead on bringing the Bill forward.
§ 12.10 p.m.
§ Mr. Phillip Whitehead (Derby, North)
As rape is the only offence where the victim is equally on trial throughout the proceedings, that aspect, more than the nature of the offence, makes it unique in criminal proceedings. Therefore, it is right that we should examine at least one way in which the victim's ordeal might be alleviated. I want to confine my remarks to the coverage of these cases by the Press and to examine how they are reported.
I join in congratulating my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) on introducing the Bill. I couple those congratulations with the equal commendation given to Rose Heilbron and to my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley), who has done so much to publicise the need for this measure. I first met my hon. Friend the Member for Hemel Hempstead at a low point in his career eight years ago. If he could survive that he could survive anything, and indeed he has done so triumphantly. The honour he has in representing Hemel Hempstead should be coupled with the privilege of Hemel Hempstead in having the good fortune to be represented by him. He has covered a great deal of ground in a short parliamentary career, in which this measure is so far the crowning point.
The Bill is a necessary piece of legislation and I am delighted that it has appeared so quickly after the Heilbron Report. There have been other reports in the past, such as the Finer Report and the Houghton Report, when matters of great import have been dealt with by outside committees and when the House has not even debated those matters, much less dealt with legislation. Certainly the Heilbron Report was speedily produced and its recommendations have been unanimously accepted. I hope that the Bill will be given a speedy Committee stage.
I do not go along with my hon. Friend the Member for Stoke-on-Trent, South in the implications he reads into the Morgan verdict. I hope that in Committee we shall not become side-tracked into a debate aimed at changing the law in that respect. However, we must keep 822 clearly in our minds the effect of the case of the Director of Public Prosecutions v. Morgan.
The provisions of the Bill will liberate women from some of the shame and guilt always associated with effecting a prosecution for rape. I am referring not merely to the psychological harm, physical violence, terror and injury that arise from these assaults but to the enormous difficulties encounterd by the victims in the proceedings leading to a prosecution.
I was greatly influenced by an account in The Times a couple of years ago relating the experiences of a student at Sussex University. The girl had been raped after she hitch-hiked late at night. Students are thought to be fair game. When students go into a witness box, judges do not always treat them as they would treat other, "more respectable" members of society.
The ordeal suffered by that young girl is set out in the report in The Times. The police caught the man responsible two or three hours after the offence. However, the girl was kept for eight hours in a police station and was subjected to extremely degrading physical examination and also to police interrogation. When brought into court, she was assured by the police several times that there would be no need for her name to be used. She said in the article:The first thing I was told when I arrived at court on the morning of the trial was that names are never withheld except in the case of juveniles.That may or may not be true, but her name was used throughout the proceedings, although the man concerned pleaded guilty and although the victim was clearly a good witness.
Nevertheless, that good friend of many Labour Members, Mr. Justice Melford Stevenson, in summing up the case, said:It was, as rape goes, a pretty anaemic affair. This man had made a fool of himself but the girl was almost equally stupid. This practice of hitch-hiking must be stopped.The rapist in that case was given a two-year suspended sentence. Perhaps Mr. Justice Melford Stevenson would like to have handed down a sentence for the grievous crime of hitch-hiking.
The fact is that medical details and accounts of past sexual history can be used in evidence for the defence. Many 823 victims know that the shame and degradation suffered in court can be almost as bad as the experience undergone during the offence. That is the terrible aspect of the offence.
I wish to examine how the Press has reported these matters. The hon. and learned Member for Blackpool, North (Mr. Miscampbell) has already mentioned the growing incidence of rape reports in the national Press. I think he, too, was drawing on a report which appeared in New Society by Keith Soothill and Anthea Jack. There are more reports of rape cases in the national Press because there is a great incidence of the crime of rape—indeed, more rape cases are now reported in the Press than was the case 20 years ago.
The inference I draw from the New Society survey is that the cases that obtain national publicity appear in the Press because one Sunday newspaper deals in great and lubricious detail with court proceedings. The survey found that between 1951 and 1971 one person in four could expect some publicity in the national Press as a result of court proceedings—let alone the publicity received in local newspapers, although it must be said that the local Press does not tend to follow the practices of the national Press.
We all know that at present national newspapers are engaged in a circulation war and are looking over their shoulders at each other. No national newspaper editor, to my knowledge, wishes to become involved, even at one remove, in the degradation of victims when names and addresses are published at the committal stage and throughout the trial until the point of sentence. As we have seen in the reporting of another alleged scandal in the last three or four weeks, however, once one London evening newspaper reports such matters, the other London evening newspaper follows suit, and this applies to the national tabloids, and to the Sunday newspapers. That is why so many victims have been named in court reports in newspapers. The percentage had not changed between 1951 and 1971 when the last survey was taken, and is 54 per cent. In other words, 54 per cent. of all women who are involved in the courts in rape proceedings must go through the ordeal of 824 seeing their names, and sometimes addresses, and other details, printed in the Press.
There is a stereotyped form in which such cases are reported. Indeed, from a journalistic point of view in terms of increasing circulation the best case is the stereotyped case. We have seen in recent days how that stereotype has been used in regard to the killing of Angolan mercenaries by somebody who has been described as "Colonel Callan". The Press has fastened on that name because it is close enough to a television hero and it identifies the figure in the public mind as a ruthless, cold-blooded killer. The same kind of argument applies to reports of rape cases but we see headlines using phrases such as "Bunny Girl", "Dancer" or "Hostess" as the main link. It is more likely that by using such a link all the details of the victim's personal life and background can be publicised.
A recent case dealt with a man described as a "Casanova Copper" who was finally sentenced—and quite rightly—to seven years' imprisonment for the rape of a dancer. A number of pictures were used of the girl posing, as she had done in her profession, for various pin-up pictures. There were a number of headlines about her and, more importantly, her name and address were used in many of the national newspapers throughout the proceedings—as well as the details of her ordeal in very small print indeed.
I do not believe that that is right. The girl's father protested about the behaviour of the Press after the case. Many national newspapers and every national newspaper editor I have ever met would like restrictions of the kind contained in Clause 4 of the Bill. A national newspaper editor is looking one way at his rivals and at circulation and the other way at the common morality of the job he is doing. If Clause 4 is implemented, as I hope it will be, we shall have effected that proscription which will allow the national newspaper editor to say "I can't print that, and no other newspaper can either. So I will not lose out." That is what the Press likes and what it would wish to have.
We face a difficulty, and this is my one qualification, concerning the question of anonymity for all participants. My hon. Friend the Member for Wolverhampton, 825 North-East (Mrs. Short) has already mentioned the harm that can be done to a man who is wrongly accused of rape. It is true that in a small minority of cases there is the possibility of a malicious prosecution, of a man being "framed". We all know what that man will endure, certainly in the reporting of the committal stage. We know the long period that may ensue before the case comes to the court where the sentence will be passed down.
In Committee we must ask ourselves whether we have extended anonymity far enough and whether there is not a point within the discretion of the judge, at the time when the case is dismissed or the sentence is handed down, when the rule of anonymity may be changed or relaxed. It must, however, be an absolute rule, subject to whatever qualifications my hon. Friend intends in Clause 4. I am a little puzzled about this point. At the earlier stage, the reporting of committal proceedings, much of the agony takes place. The name and address are given of the man on trial, who has still not been found guilty. Always for the woman, if her name is being used, there is great distress. Given that minor qualification, I whole-heartedly support the Bill and hope that we can give it a speedy passage.
§ 12.23 p.m.
§ Mr. Michael Alison (Barkston Ash)
On behalf of the Opposition I warmly welcome this Bill and express the hope that it receives a Second Reading. I—and I am sure I speak for all of us—sympathise profoundly with the predicament of the women described by the hon. Member for Hemel Hempstead (Mr. Corbett) in his graphic references to the letters he has received. Nothing could be more moving than the expression of desolation of innocent women left in this appalling predicament, with no apparent way of vindicating their reputation and no apparent recourse to bringing about the punishment of those who have outraged them.
For this reason we warmly welcome the rapid deliberations of the Heilbron Group, its conclusions, and this attempt to encapsulate its findings by the hon. Member. Perhaps the Minister of State can tell us to what extent the Government have been able to give considered and extensive assistance to the promoter of the Bill so that we know whether the technical and 826 legal matters have received proper scruntiny.
I specially welcome the attempt to define rape in Clause 1 and particularly the deliberate highlighting of the factor of consent and recklessness. In this context I underline the point made by my hon. and learned Friend the Member for Blackpool, North (Mr. Miscampbell), that for many of us the most significant feature of the Bill is not the dreadfully complicated legal drafting of Clause 2 but the sweeping and comparatively simple provisions about anonymity. This is the sea change that the Bill brings about.
The result of that change will, I hope, be that many more cases will be brought forward. All of the cases to which the hon. Member for Hemel Hempstead referred might have been brought under the cloak of anonymity. That gives rise to an important new factor. Because of the possibility of further cases coming forward there will be brought to the attention of the courts what I will describe as, I hope not in inhuman terms, far more marginal cases. Here I take up a point made by the hon. Member for Wolverhampton, North-East (Mrs. Short). Because more of these marginal cases will come before the courts we shall have to be careful and have regard to the grave damage that can be done to a man who is unjustly accused of rape.
We have carefully to consider the impact of Clause 2, with its Draconian changes in the way that evidence can be brought forward in this context of the new kind of marginal case we may be having. There is always bound to be the greatest difficulty in reaching a proper judgment in such marginal cases. The mens rea argument in this context must be extremely difficult to establish. We are talking about the disposition of the mind in the passion of sexual intercourse or attempted sexual intercourse. The mind is profoundly volatile. There is a sense of all rational control or deliberation seeping away or being under much less deliberative control.
It is almost inherent in the nature of the passions and the acts we are concerned with that feeling overcomes or ceases directly to control and regulate action. It is part of the natural spontaneity of the action, and it is bound to be like this. How difficult it will be, in the sort of marginal case that will come 827 forward under the anonymity provisions, to be certain that justice is being done to a young man.
I can think of many cases where there would be difficult relationship problems and difficulty in establishing consent, state of mind, or recklessness. All of these cases will come forward, rightly and properly. Above all, we must give the benefit of the doubt to the woman. It will be very tricky if, under these circumstances, the burden of proof placed upon a young man is sharply circumscribed by the provisions of Clause 2. This is where we need an assurance from the Minister to the effect that Clause 2 has had some sort of scrutiny by his Dept. I am not an expert on the law—my hon. and learned Friend the Member for Thanet, West (Mr. Rees Davies) knows more about that. I hope that we can have an assurance that the technical and legal bodies have examined this matter. Against the background of the new circumstances I very much welcome the attempt in Clause 2 to defend the reputation of the woman, even when she is to have the added benefit of anonymity. I take the point made by my hon. and learned Friend the Member for Black-pool, North that we shall have to look carefully at Clause 2 to make sure that we can still do justice in the more difficult cases that will come forward.
There is a technical point on which I would like the Minister's advice. It concerns the relationship between Clause 1(1) and (2)—in which the attempt is made to define rape—and the rather wider ambit of the definition clause, Clause 6, in which a rape offence is precisely defined so as to include quite clearly cases where sexual intercourse, that is penetration, has not necessarily occurred but where there has been an attempt to do that.
Here we come to a problematic area. For example, the phrase "conspiracy to rape", which will be one of the matters with which juries will be concerned, raises difficulties. The rape offence, which includes conspiracy to rape, is the whole meat of Clause 2 and the rest of the Bill. A conspiracy to rape could arise from a situation in which a man rings up the secretary of an escort agency and says, "I want a nice, pretty young girl to take out this evening. Can you arrange 828 it? The more cheerful, the more free and easy she is the better." The escort agency may provide a girl. The equivocation of the relationship which may be established between them, which could lead to an attempt at sexual intercourse without resulting in it, will produce a situation in which there is conspiracy to rape.
§ Mr. Alison
Yes. The hon. Gentleman is a lawyer and he probably knows better than I do, but we shall have to consider carefully in Committee the attempt in Clause 2 sharply to define rape and the broad brush description of the offence in Clause 6.
I disagree with what my hon. and learned Friend the Member for Black-pool, North said on the question of juries. Mrs. Justice Heilbron was right on this matter. When we are considering matters that intimately affect the lives, health and well-being of women, because of their sex and the special features of their sex, it is entirely reasonable, as with the Lane Committee and the Heilbron Group, that we should weigh carefully the question of the number of women who should take part in the committee of inquiry. That applies no less forcefully to the question of selecting juries to hear rape cases. I hope that in Committee it will be possible to introduce a new clause giving effect to what the Heilbron Group said in this context.
Against the background of those general, perhaps probing, inquiries, I very much welcome the Bill, and wish it satisfactory progress.
§ 12.31 p.m.
§ The Minister of State, Home Office (Mr. Alexander W. Lyon)
My hon. Friend the Member for Hemel Hempstead (Mr. Corbett) has saved me trouble on two counts. First, he has introduced the Bill. The hon. Member for Barkston Ash (Mr. Alison) asked to what extent we had been able to help my hon. Friend. In fact, the parliamentary draftsmen drafted the Bill. There would have been a Government Bill had there been time in the present Session, and we are grateful to my hon. Friend for introducing his Bill under the Private Member's procedure. He and his sponsors 829 are responsible for the ultimate decisions on the Bill, but we are giving all the assistance we can.
In addition to paying tribute to my hon. Friend the Member for Hemel Hempstead for his cogent speech, I wish to pay tribute to my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley). I am sorry that he is not present, because he articulated, as is his genius, the general feeling of disquiet about rape cases and rape generally felt by the public, particularly women. Although, as I shall seek to show, I think that he got the major issue wrong—I believe that the Heilbron Group proved that he got it wrong, and he now accepts that he got it wrong—we owe him a debt of gratitude for indicating the nature of the disquiet and for pushing to have the issue examined.
Because we recognised the extent of that disquiet, my right hon. Friend the Home Secretary agreed to appoint the group headed by Mrs. Justice Heilbron and gave it express instructions to report within a few months because we were anxious to deal with the problems, if problems were seen to emerge from the group's Report, in this Session. That is why we have been able to be so expeditious in this matter.
I indicated that there was a degree of dispute between my hon. Friend the Member for Stoke-on-Trent, South and myself. When he was talking about the complacency that exists in certain quarters, I noticed that he did not choose to mention names but was looking directly at me. I plead guilty to scepticism about the main brunt of his criticism, last year, of the Morgan judgment. If he were present to listen to me, I am sure that he would be only too willing to agree that that scepticism was justified.
My hon. Friend the Member for Hemel Hempstead has indicated the general nature of the Bill and therefore I need not go into it, but I wish to explain why I am convinced that the Heilbron judgment was absolutely right and that the Morgan judgment was an essential step in confirming one of the most important principles in English criminal law, namely, that a man shall not be convicted for making an honest mistake. If we ever reached that stage, 830 there would be real danger for people coming before the criminal courts.
A crime must be a deliberate or reckless intent to do something that society brands as criminal. Only that justifies punishment. In civil legislation, there is clearly room for a fault to be penalised if it is merely a mistake. We do that in relation to negligence generally in the civil courts, but not in the criminal courts. The mistake that my hon. Friend the Member for Stoke-on-Trent, South made, and in which he was joined by many people in the country, was in thinking that the Morgan judgment meant that anybody could get away with an unprovoked attack on a woman and that a man should therefore be penalised by reason of the effect on the woman rather than because of his intention.
There was a phrase in the speech of the hon. Member for Barkston Ash with which I profoundly disagreed and which, on reflection, he would probably want to change. He said that in these cases we should, above all, give the benefit of the doubt to the woman. I disagree entirely. A criminal case is a criminal case. The prosecution must prove its case beyond reasonable doubt. If there is doubt, it must be given to the accused, and in this instance the accused is the man. If we were ever to lose sight of that, men would be in danger of being sent to prison for long terms for what could have been an honest mistake. I shall show later that in a case that followed the Morgan judgment that is precisely what happened.
The difficulty about rape is simply that the act of intercourse is the same whether it is the most tender expression of human relationship between a man and his wife in the matrimonial bed or a savage, sadistic attack by a brute upon a defenceless female. What is different is the intention. Sometimes that intention is manifested with marks of violence, but even with marks of violence the act can be consensual.
When I was in practice I was involved in a case between a husband and wife in which the wife alleged that the husband insisted that she hit him with a riding crop in the act of sexual intercourse. Much to my surprise, when the answer came in from the respondent, I found that he agreed that that was the way in which they had sexual intercourse, but he 831 said that it was because she wanted him to hit her with a riding crop. They agreed that this bizarre act of violence in sexual relationship was done by consent between the pair of them.
Therefore, marks of violence do not necessarily vitiate consent. It may be there in any event. The difference is the mental intent of the man and the woman, and in criminal cases it is notoriously difficult to prove intent. That is why this whole question of rape is so difficult. There may be a point at which the woman has not resisted physically, at which the man has applied no physical violence or physical pressure, and yet the woman is not consenting. It may be difficult in certain circumstances for the man to understand that she is not consenting.
That is where the Morgan judgment came in—to decide the attitude of the law when the man honestly believed that there was consent. It is very rare for a case to turn upon that fine judgment. It would not happen in many cases. In most cases, the acts of a man or woman would be enough to indicate that the man knew perfectly well that the woman was not consenting. If he used violence, or the woman screamed, or there was evidence of torn clothing, these are matters a jury would be perfectly entitled to consider, and which the Morgan judgment indicated that a jury should concern itself with. They indicate that a man is not telling the truth when he says that he thought a woman was consenting.
A rare case is one like the Morgan case, where the husband has indicated to a man that his wife is willing and agrees to having sexual intercourse with him. The House of Lords decided in the Morgan case that, on the facts, that defence was never open and, despite their judgment, they convicted.
In the Cogan case, a decision was made in the lower courts after the Morgan decision in the Court of Appeal. It was known that the Morgan decision was going to the House of Lords and therefore a special verdict was returned in the Cogan case. The verdict was that the man believed that the woman was consenting, but that his belief was based on unreasonable grounds. It was percisely that area in which the Morgan judgment made a difference when the 832 Court of Appeal decided the Cogan case. It had the advantage of the House of Lords judgment and overrode the jury.
There is another case, the details of which I have only to spell out for hon. Members to see how rare it would be. A man invited another man to come home with him after they had been out drinking at night. When they got home, the husband went to bed with his wife and, when they had undressed, he told her that he was going to invite the other man to have intercourse with her. He invited the other man upstairs and said: "I am going to have intercourse with my wife. You can follow." The husband had intercourse in the presence of the man and then invited the man to follow. He did so. The woman agreed that she never struggled or said "No". The most she did was to cry in the course of having intercourse with the second man. The man said: "I honestly believed that the husband's invitation was acceptable to the wife". The jury accepted that. Who would say that a man in that state of mind—he honestly believed that consent had been given—should be convicted of a criminal offence? Yet the jury was bound to convict on the direction given to it in the first place, and it did so. The man was sentenced to two years' imprisonment.
I felt so strongly that this kind of situation was wrong and that we should not convict a man for making an honest mistake that I resisted my hon. Friend the Member for Stoke-on-Trent, South in the first place, and we insisted that the Heilbron Group should consider the matter. It has now been considered, and my hon. Friend agrees that that consideration has resulted in a cogent Report. Its cogency demonstrates that my hon. Friend was wrong, and gives us the opportunity to make crystal clear to all concerned—including the women's lobbies, who were very agitated about the matter—what the Morgan judgment meant. It meant that if a man is reckless in deciding whether a woman is consenting, he can be convicted of rape. In deciding whether a man is speaking the truth when he says that he honestly believed a woman was consenting, a jury is entitled to take into account the fact that on reasonable grounds other people would not have said there was any consent. These factors are valid not to the issue of consent but to 833 the issue of establishing the credibility of the accused and his claim that he believed the woman was consenting.
§ Mr. Ashley
Does my hon. Friend agree that the difference between us has been narrowed by the Heilbron Report? I accept that provided recklessness is fully taken into account by juries, which it has not necessarily been in the past, we have moved a long way towards at least clarifying an issue which has be-devilled the law relating to rape.
§ Mr. Lyon
I do not want to disagree when my hon. Friend and I have reached a moment of agreement, but the Morgan judgment confirms that recklessness is an essential requisite of the crime of rape and it could negative an allegation of honest belief in consent. The Bill is saying no more than that. That is what I told my hon. Friend the Member for Stoke-on-Trent, South last year. That is why I did not think the Morgan judgment changed the pre-existing law on rape, and why I was reluctant to amend it.
§ Mr. Peter Bottomley (Woolwich, West)
Does the hon. Gentleman not agree that the crucial issue, as far as the public were concerned, and the reason why there was so much protest and support for the hon. Member for Stoke-on-Trent, South (Mr. Ashley), was not that the Minister or lawyers believed that the Morgan judgment did not change the situation but that a large number of men and women read reports of the Morgan case and believed that the situation had been changed?
§ Mr. Lyon
I take that point very seriously. It was precisely that point that persuaded us to set un the Heilbron Group, and why we accept, as does my hon. Friend the Member for Stoke-on-Trent, South, the cogency of the Report, which clarifies for the public what those who are informed on this subject always knew—that the Morgan judgment did not change the law and that the essential requisites in that case afforded a proper defence to an innocent woman who was raped. It is for that reason we support this Bill.
§ Mr. Whitehead
Does my hon. Friend not agree that much of the public understanding of the Morgan verdict arose from the fact that it was reported in certain quarters as "the rapists' charter", and other such names?
§ Mr. Lyon
I am coming to the question of the Press in a moment. I am not responsible for the way in which the Press reports anything, least of all my own speeches. I agree with my hon. Friend. A great deal of the trouble arose because there was a misunderstanding by the Press about the meaning of the Morgan judgment. It is useful that we have now put the matter right.
I agree with what the hon. and learned Member for Blackpool, North (Mr. Miscampbell) said about Clause 1(2). It reasserts the pre-existing law and the law as stated in the Morgan judgment, but it might be understood as meaning a change in the substantive law on rape, and we can consider in Committee whether it is necessary to include it in the Bill.
The Bill has been drafted entirely on the Heilbron package. We thought it right to give legislative substance to all but two of the recommendations, but that does not mean that we do not have some reservations about the precise balance. The Government are prepared to look at any suggestions for striking a rather firmer balance. That all deals with the major issue in the Bill.
The second issue is the question of attacks on the character of the prosecutrix—an issue which, in my view, was always the most important cause of grievance for women. I do not agree with the hon. and learned Member for Blackpool, North that merely because we have protected women to some extent by anonymity it is possible to keep the existing rules about attacking the character of the prosecutrix.
I believe that the rules were determined by nineteeenth-century judges according to a code and moral outlook which is now past, and that most people would now agree that the sexual behaviour of a woman has no relevance to a particular case unless it indicates to the jury either that she is not telling the truth or that the man's story about what actually happened is, as Heilbron suggests, "so strikingly similar" to some part of her pre-existing sexual history that it has relevance in the particular case.
We all know what we mean by "what is relevant in those circumstances." Nevertheless, Heilbron thought it necessary to 835 spell it out in some detail, and we have tried in Clause 2 to give legislative effect to what Heilbron recommended. However, I must agree with the hon. Member for Barkston Ash that the clause is an extremely complex piece of drafting. The parliamentary draftsman has done his best, but it will be extremely difficult for judges, let alone juries, to understand what it means. Perhaps we can simplify it in Committee.
I put forward for the consideration of the sponsors of the Bill in due course the suggestion that it might be enough, now that this whole issue has been raised and Heilbron has reported, if an unfettered discretion were given to the judge in certain circumstances to allow cross-examination about the prosecutrix's moral character.
The reason why this aspect of the matter is so complex is that Heilbron wanted to limit the area of discretion to something which was "strikingly similar", but I agree with the hon. and learned Member for Blackpool, North that one can envisage circumstances in which the woman's moral character may be relevant but is not strikingly similar to the facts of the particular case. Perhaps we may discuss that also in Committee.
I turn now to the question of anonymity. I confess that this arose first for me as the result of a Question that I was asked immediately following the notorious case—the Norwich case—to which my hon. Friend the Member for Derby, North (Mr. Whitehead) referred. I was asked whether we would introduce anonymity for complainants in rape cases. My judgment at that time was that it would be such a marked change that it would be wrong to do it, because I could conceive of circumstances in which there would be injustice to an acquitted defendant who had rightly claimed that a woman had made a false accusation against him. If she were to remain anonymous and he did not, he would have to bear the full brunt of the complaint. However, to allow him anonymity seemed to me to make a substantial breach in the fundamental principle of English justice, that it is done in public and is known to the public.
836 It is not just a matter of Press interest. There is a real public interest in people knowing that matters discussed in court are available to them, and to make the accused person anonymous would, I thought, make a substantial breach in that principle. Therefore, I felt at that time that we could not take that step, but I indicated in my answer that in particular cases the judge could ask the Press not to disclose the name, because I thought that the principle that applied in blackmail was a principle general to the whole of English criminal jurisprudence.
Unfortunately, in the contempt case that was brought against Paul Foot the Lord Chief Justice indicated that, in his view, that principle applied only to blackmail and that if it were meant to apply to rape it would require legislation. Therefore, I am bound to accept the Heilbron recommendation that we must apply anonymity to the complainant only through legislation. I must add that I have not decided in my own mind whether my hon. Friend the Member for Wolverhampton, North-East (Mrs. Short) is right in saying that there ought to be anonymity for the defendant in those circumstances, and I think that that, also, is a matter that we shall have to discuss at some length in Committee.
I come now to two detailed points. My hon. Friend the Member for Wolverhampton, North-East asked about Clause 4(3)——
§ Mr. Miscampbell
I apologise for interrupting the Minister, but I should like to raise a question about anonymity before he passes to certain technical matters, as I gather he is about to do. Clause 4(1) begins:Subject to subsection (7)(a) of this section, after a person is accused of a rape offence no matter likely to lead members of the public to identify a woman as the complainantshall be disclosed, and Clause 6, the definition clause, tells us that'rape offence' means any of the following"—and then, after rape itself, we findattempted rape, aiding, abetting, counselling and procuring rape or attempted rape, conspiracy to rape and incitement to rape".I may be mistaken, but are we not widening the whole notion of anonymity very much further than many hon. Members 837 would think right, taking it beyond rape, or attempted rape?
§ Mr. Lyon
That is one of the technical points to which I was coming. First, I want to deal with the question raised by my hon. Friend the Member for Wolverhampton, North-East. Clause 4(3) is an attempt to meet the point raised in paragraph 167 of the Heilbron Report, which refers to the situation in which the defendant is the husband of the complainant, which means that her name will be divulged in any case, or where her position and plight have been the subject of wide public knowledge and comment in the Press before it became clear that she was the victim of a rape offence. For example, if Lesley Whittle had been raped instead of being murdered and all the preceding publicity had taken place, it would have been very difficult in certain circumstances not to divulge her name when the ultimate case came on. I am not sure that we have it right in Clause 4(3), and I shall listen to anything said in Committee about it.
I turn now to the question of Clause 6, which was raised by the hon. Member for Barkston Ash and his hon. and learned Friend the Member for Blackpool, North. How far do we go? If we are giving anonymity to complainants in rape cases, should we give anonymity to complainants in indecent assault cases, in incest cases, in buggery cases and in homosexual cases? Heilbron's answer was that these are wider issues, which require much greater consideration. The line which Heilbron would draw is that it should apply only to rape and to inchoate offences, which means attempt, conspiracy, and so on. Incidentally, I should tell the hon. Member for Barkston Ash that nothing in Clause 6 creates a new offence. These are offences already under the law. All that Clause 6 does is to lay down where anonymity shall apply.
We are, therefore, in the rather absurd situation that if a man is charged with indecent assault upon a woman and is charged also with attempted rape, anonymity applies in relation to the attempted rape but not to the indecent assault. Equally, in relation to rape, the jury can always bring in the lesser verdict of indecent assault if it is not satisfied about rape. If the jury does that, the 838 woman is not anonymous unless the newspapers respect her anonymity.
I regard that as part of the absurdity of trying to legislate in one area without considering the implications for other areas. This, also, is a matter that we shall have to discuss in Committee. I cannot at the moment see how we can resolve that problem. We have to draw the line somewhere. We have drawn it as in the Bill. It is arbitrary, and it may give rise to difficulty, but, as at present advised, I think, on balance, that that is the best we can do. I shall listen to such words of wisdom as pour upon me in Committee and see whether there is a better line that we can draw.
§ Mr. Leslie Spriggs (St. Helens)
Following what my hon. Friend the Member for Derby, North (Mr. Whitehead) said about the defendant in a case, I have in mind the case of conspiracy to destroy a man's character by the use of a charge of rape which is completely false. When a defendant claims, as part of his defence, that there is a conspiracy against him with the object of destroying his character because of his position in society or politics, would it not be fair to give him the kind of defence that the Bill would provide for the woman?
§ Mr. Lyon
That is one of the factors that we shall have to discuss in Committee. I see great force in my hon. Friend's position. As I said, that is one reason why I hold reservations about legislating about anonymity in the first place. That is just one of the many circumstances that we shall have to talk about. I do not think that we shall be able to resolve this dispute any more fairly than is provided for in the Bill. Heilbron considered it and showed the difficulties of going as far as my hon. Friend would wish. We shall discuss these matters in what I am sure will be interesting debates in Committee.
In view of what I have said, it is perhaps unnecessary to say that the Government give full support to the Bill. I am grateful to my hon. Friend for introducing it, and I hope that it will receive a Second Reading.
§ 1.1 p.m.
§ Mr. W. R. Rees-Davies (Thanet, West)
I have considerable interest in this subject as a member of the Criminal Bar 839 Association, to whose views on certain aspects of the Bill I intend to refer.
I propose to support the Second Reading, although I certainly want to see substantial amendment of the Bill in certain respects. I have probably engaged in more prosecutions and defences in rape cases over many years than anyone else in either House. I began in chambers which dealt entirely with prosecutions and I now have my own which do a large number of defences as well. I have also been directly concerned in considering these matters, notably the important question of anonymity.
I share the view of the Criminal Bar Association, which, although it has every reason to protect the principle of publication in full of any trial, has reluctantly concluded that there should be anonymity. Of course the public will still be able to attend the trial throughout. It will not be held in camera. There will be a protection against advertisement and publicity in the media only. If that is the position, the accused person himself must as a matter of justice be entitled to equivalent protection.
My hon. Friend the Member for Rochester and Chatham——
§ Mr. Rees-Davies
I beg my hon. Friend's pardon: of course, he was the conqueror of Woolwich. My hon Friend the Member for Woolwich, West (Mr. Bottomley) put his finger upon the key issue in an intervention when he said that, at the time of the Morgan trial, there was a strong current of feeling in the country, particularly among women, that they were not being treated fairly in rape cases. I start from that basis too. There was a feeling that in some way they were liable to attack, to have their reputations and characters exposed even more than the man and that they were severely affected.
When that case occurred, women thought that in some way the law had been extended in defence of the rapist, whereas nothing of the kind had happened. There was complete confusion. The Press did not understand the legal aspects—there was no particular reason why it should—and did not try to find out. The Press went sailing off down the line that in some way a rapist could 840 wrongly be found not guilty having regard to the existing condition of the law. But there never was any confusion. The law is extremely easy to state and to explain to the jury. I have never found the slightest difficulty in doing so in the many cases with which I have been concerned.
First of all, the definition of rape, a common law definition going back hundreds of years, is the unlawful carnal knowledge of a woman without her consent. In order to be found guilty, a man must have mens rea, which simply means that he must have a guilty mind, that he must either know or believe that the woman does not consent.
The case of Morgan and Others got into a terrible muddle because the judge gave a misdirection, that the man had to have "reasonable grounds" for believing what he alleged—namely, consent. If he had left out those words, the men would have been convicted in the first place and the case would never have gone to the House of Lords.
Let us not forget that in that case there was overwhelming evidence of rape which gave rise to the application of the "proviso". In a case, notwithstanding there is a misdirection in point of law, where the evidence is so overwhelming that the man will be convicted anyway, the court of Appeal, Criminal Division, is entitled to say so and convict.
I am grateful for some of the details of the Morgan case to my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen), who defended Morgan. A husband took three men into his own home, they raped his wife and he had sexual intercourse with her thereafter. It was suggested that in some way they had reasonable grounds for thinking that the woman consented because the husband had told them that his wife was "kinky" and that she would pretend that she was being raped. That was the defence. There were many other aspects of the confessions and other statements by the three accused which made it plain that they were all guilty. It was this case which led eventually to the appointment of the Heilbron Advisory Group.
Let us look back at the history of the offence of rape. From time immemorial death was the penalty for rape. William the Conqueror changed all that by providing that the penalty for rape, which some 841 people might think not unsuitable, was castration and/or loss of one's eyes. So in a particularly bad case the man lost it all.
The powers-that-be went to the other extreme. In the reign of Edward I it was provided that rape should be no more than a physical trespass and the penalty was reduced to two years' imprisonment or a fine for the benefit of the king. So I suppose he gained some mercenary benefit from the number of rapes which occurred. After that, in 13 Edward I, so many rapes were taking place that they changed to imprisonment for life. Under the Offences Against the Person Act 1861, it was made a felony with life imprisonment, a penalty preserved by the Sexual Offences Act 1956. It is true that an assault occasioning grievous bodily harm can also attract a penalty up to and including life imprisonment.
However, rape is merely a physical assault accompanied with sexual undertones. It is, in fact, a case of violent assault, and it is right that the Commission is now considering whether rape should continue to be an offence in our law. In the Bill we propose to turn it from a common law offence into a statutory offence, or at least we intend to define it. We must define it properly because Clause 1 is nothing more than an attempt to declare the existing law. It does not define "rape" or extend it to something that it is not. I accept it on that basis but not upon the basis that it alters the law.
Rape is a serious criminal offence and it would be wholly wrong for men to be found guilty of rape when they do not have a guilty mind.
I turn to the different types of case involved. There was the case in Germany of a company sergeant major in the Military Police who had a fine record. He went to the sergeants' mess one night and got very drunk. He then went off to bed. There was quite clear evidence that he went to his neighbour's house, which was occupied by a married fellow soldier. The sergeant major was himself married. He went into the bedroom, got straight into bed and promptly had sexual intercourse with the woman in the bed, who was not his wife but the wife of the corporal next door. The question that the court martial had to determine 842 was whether it was rape. There was no doubt that his initial approaches were done, befuddled with drink, without that knowledge. The woman concerned woke up and undoubtedly repelled his advances. He came to know that it was not his wife but the wife of the man living next door. Those were the circumstances of the trial, and go to the question of recklessness. The man was found guilty on the perfectly proper evidence that at the time he made the penetration into that woman he had undoubtedly recognised that she was not his wife and was not consenting. Therefore, it was rape.
In certain circumstances it could well be said that if a man got extremely drunk he was being reckless and he should be found guilty. We have to ensure that consideration is given to what is meant by "drunken" and its effect upon mens rea. Unattractive though the case in Germany may have been, circumstances of that kind do occur in cases of drink and we must be very careful about them.
§ Mr. Peter Bottomley
If the man had been so befuddled and had not recognised that the woman was not his wife and, therefore, had been found not guilty of rape, what else could he have been found guilty of? The woman in that situation would be in the same situation whether the man was found guilty of rape or found guilty of the lesser offence. The anonymity provisions should cover both equally.
§ Mr. Rees-Davies
The anonymity provisions should certainly cover them. I was dealing with the question of conviction. The man could be found guilty of the lesser offence of indecent assault. But if the jury was of the opinion that he was, in his own belief, genuinely making love to his wife—which was his defence in this case—he would be found not guilty. We have to be clear that it is a criminal offence as against the man and that there is no question that there is anything wrong as regards the woman. In the case I have cited, the House will recognise that at no time was the woman impugned as to her honour. There was no question of its being suggested that she was a consenting party. It is only in cases where it is suggested that a woman consents that we must have protection in the procedures of the courts.
843 In a great many cases the question is one of identity—did he commit the offence at all? It is not by any means always a question of assent. If this is declaratory of the law, I am in favour of it.
I wish to criticise certain aspects of the Heilbron Group. First, I criticise the members of the Group and its Report. I have no criticism whatever about the judge. She was a judge of considerable experience in this branch of the law and is highly respected in all matters. Although I do not direct personal criticism against the other appointees—they all have distinguished backgrounds—I venture to point out that three of the remaining four do not have experience in these matters. One appointee was a professor of law who specialises in land law and Commonwealth law. He is a distinguished professor at the University of Canterbury. Another was a psychiatrist and a professor who has some knowledge in forensic science. The third was Dr. Mia Pringle, who is a children's psychologist. I am afraid I know nothing about the other lady. Therefore, none of the other members, though wholly admirable, had experience of trials. No doubt it was valuable to have had a psychiatrist or psychologist in the Group, but the Group was rather narrow. It is the area of trials of rape with which we are most concerned in this Bill.
The Bill is not concerned about important matters, such as whether there should be an existing rape offence, whether it should be included within the laws of assault or what should be the attitude to penal questions or other psychiatric issues. I venture to point out that it was not the best group that has ever been set up. Furthermore, it was asked to report quickly, and as a result it reported on a number of matters which, it is only fair to say, must be criticised.
At paragraph 188 the Group suggests that we should alter the whole of the procedures relating to challenge by jury. That is a tall order. For a committee of this kind, without culling the views of the Bar and the judges, to say that the procedure for challenge by jury should be altered is a considerable recommendation. The Group said.In our view the right course is to aim at altering the procedures so as to ensure that in rape trials there is a minimum of four 844 women and also four men on a jury, in order to keep the balance of the sexes within reasonable bounds.… As regards the use of the peremptory challenges (which are, undoubtedly, often used to exclude women or to get other age groups) we suggest that challenges should not be capable of being used so as to frustrate the minimum numbers.I am sorry to say that that paragraph shows great inexperience of rape trials. It is the wide experience of members of the Criminal Bar that it is extremely wise to have one or two ladies on the jury.
Curiously, and contrary to the view implicit in that paragraph, I have very little doubt that it is essential to have women in a rape case jury if one is defending. They are very often far harder upon their sex than men. Therefore, the implicit assumption there that people will challenge to get the women off the jury is wrong.
However, in any event, the right of challenge is the oldest right given to any accused person. To destroy that right of challenge by gaily saying that it is not to apply in rape cases not only shows a lack of consideration for the basic principles of law and the right of the defence; it also shows a misunderstanding of the psychology of men and women in that very type of trial. I would strongly oppose any question of altering the general position on challenge.
I should like to add this postscript to what I say in that regard. It is difficult now to get even six men and six women in a trial at the Central Criminal Court at the Old Bailey today. One tends to get more women than men. Certainly this has completely changed in recent times. That is equally applicable to the Crown courts in London. I cannot speak for courts outside London, but I have made inquiries and I understand that plenty of women are available as jurors. Therefore, this point is not likely to arise and, whatever view is expressed by Heilbron, I do not think that there will be any great difficulty.
The next point with which I want to deal is anonymity, because here again I think that the Group in its Report—I shall not go into this matter at great length—worked entirely upon the assumption that the woman and her reputation and background were liable to be the subject of attack. However, there is no branch of the law, no class of case, where it is so easy for a woman to make an 845 allegation of this kind and to make it against a professional man. It is men, too, who require protection of their reputations against baseless allegations of rape, which frequently occur. If we in this House were to ask the Metropolitan Police for the figures on how many allegations of rape there were in the course of a year as against the number of cases actually prosecuted for rape, all cases in which the woman was willing to give evidence, I think we should find that over four times as many allegations never come to the light of day. That is irrespective of the fact that the woman may wish to continue with the allegation.
The fact is that a great many allegations of these types are made. They may arise from a variety of causes—from acute jealousy or from morbid feelings through having been rejected, either by the person accused or by another man. There is no class of case in which one has to be more careful to ensure that there is not only a fair and proper allegation of rape by the complainant but that there is some proper corroboration to be found in the case generally presented, because in no way can one derogate from the basic principle of our law that a person has to be found guilty beyond all reasonable doubt; and if, therefore, there is a doubt, it must be resolved in favour of the accused.
That is why I believe that the basic question of giving protection to both parties, and more particularly to the complainant, by enabling them to give their evidence in such a manner that the hearing is fully and properly conducted, requires that there is no undue publicity in the Press or the media, and that this is right.
How has that come about? It has come about in this way. Unfortunately nowadays, rapportage, as it was understood by the Press, no longer exists. In the days immediately before the war, in 1938–39, we had rapportage, a whole trial being fully reported over four or five pages daily of the newspapers of that time. The questions in examination and cross-examination were fully reported, and the public followed a case right through. They read a case of real interest. It was for that reason that the great leaders of the Bar in those days, such as Sir Patrick Hastings and Sir Norman Birkett, were so well known. Today that 846 does not happen. No one does rapport-age today. The News of the World does not report trials properly or in full. It merely picks out the salacious parts which it thinks will titillate the appetites of the public. That is a matter of policy for the News of the World. I am not criticising the policy. I am stating it as a fact.
The real essence, therefore, is this, it is because today the media, in particular the newspapers which are handling that type of commercial ware, want to use the succulent bits of the trials, in relation to the woman's character and reputation, that she does not want to go into the witness box, because in any event, even if there is a conviction for rape, she may still find herself being harmfully affected by the advertisement that has taken place.
Therefore, it seems to me that it is quite right to do this. Should it be done in every case? I should have thought that it may well be that this particular clause on anonymity should give rather more discretion to the judge to decide whether or not it is a proper case, rather than the way in which it is set out at present. However, I make no great point of that because I am firmly in favour of the principle that we should extend anonymity in that class of case.
However, if we do that, I do not believe that we should allow any reporting of matters concerning the accused person or his name until the conclusion of the case. While I recognise that in most cases if the accused person were acquitted he would not wish his name to be published, I venture to point out that he might desire to have his name published, because if it was a local case he might well want the fact that he was acquitted to be published in the local Press widely. Word might well have got around, particularly about a professional man, if he was charged with rape, and people would want to know the outcome. Therefore, he should have the opportunity both ways, of his name either being withheld or being disclosed at his wish.
I turn from the aspect of anonymity to the earlier matters. Here we come to matters of very great moment. Clause 2 is taken almost entirely from the Heilbron Report. As the Minister has pointed out, this clause depends upon 847 whether one accepts the premises contained in paragraphs 134 and 137 of the Report. I do not believe for a moment that this is acceptable. I do not believe that it is acceptable to the public, and it is certainly not acceptable to me.
Paragraph 134 of the Report states:We think that questions and evidence as to the associations of the complainant with the accused will, in general, be regarded as relevant to the issues involved in a trial for rape.That must be so, and I agree. The paragraph continues:we think that in general the previous sexual history of the complainant with other men (including general evidence of bad reputation) ought not to be introduced.I pause there. What that means is as simple as this, and it is carried into the Bill. It means that if a girl is a prostitute or is well known to associate absolutely regularly in the loosest possible manner, this is to be treated normally as totally irrelevant. However, in a very large number of cases this is of the utmost relevance. In the endeavour to try in the clause to set out those circumstances in which it will be relevant, the sponsors of the Bill have failed to do so in any way that is satisfactory at all. I shall instance how and why that is so in a moment.
Paragraph 137 states:We therefore recommend that the trial Judge's discretion to admit such evidence should be guided by, and based on, principles set out in legislation. This should permit the Judge to admit cross-examination and allow evidence in rebuttal dealing with the complainant's previous sexual history with persons other than the accused if the Judge is satisfied—the girl-(a) that this evidence relates to behaviour on the part of the complainant"—which was strikingly similar to her alleged behaviour on the occasion of, or in relation to, events immediately preceding, or following, the alleged offence; andThat leaves the situation in an intolerable state of confusion. It is not one which a judge could direct clearly or one which a jury could understand. In a number of cases which I could cite it would have meant that the defendant would not have been able to put his case fairly, and, as a result, he would probably have been convicted.(b) that the degree of relevance of that evidence to issues arising in the trial is such that it would be unfair to the accused to exclude it.
848 Further, a defence counsel would not be able to say in advance that he would be able to establish the previous character and history or that it was similar behaviour, because he would not know it until he had undertaken the cross-examination.
I instance one case. The girl had been brought up in the island of Jamaica but was a white and English girl aged 19. She was the complainant of rape. She laid the complaint in rather curious circumstances. She was found with no clothes on in a garden in Notting Hill Gate by a neighbour who took her in, promptly rang the police and laid the complaint that she had been raped.
The circumstances were as follows. That evening she had been to a club in the Fulham area which was entirely the resort of coloured men for dancing. The men who went to that club were almost without exception coloured, mainly from the West Indies. There were a number of white girls there, most of whom—it was easy to establish—were living with the men concerned.
On leaving the premises the girl in question had returned with two coloured Jamaicans to her own flat, where she had invited them in to coffee and taken them into her own bedroom, where they had the coffee. The allegation was that she was afterwards stripped and raped. There was no suggestion that she had suffered any physical damage to her body. She said, as was true, that she had run out of the premises without clothes on after sex had concluded, taking with her only a doormat which was inside the premises. She had gone into the garden where she had been found by the neighbour.
Those were the circumstances of the case. The defence wanted to establish, first, all the matters that related to her background—was she a girl who had had previous sexual connection in Jamaica and thereafter with other coloured boys; was she a girl who had had sexual intercourse with coloured men in this country? As regards the dancing and the other events of the evening, the defence wanted to establish whether it was true that she had been taking drink and had been dancing in particularly amorous fashion with the two men at the club.
Under Clause 2, all those earlier matters would clearly be excluded. In the 849 case in question, however, that cross-examination was pursued throughout. It was established in the event, with the girl herself breaking down, that she had had a number of sexual affairs with coloured men in Jamaica. She had then left Jamaica, come to England and been engaged to an English boy here but had broken off the engagement. She had become involved with and had been seen drinking with and dancing in very sexual postures with these two men at the club. Evidence was forthcoming on those matters.
The girl was in the end prepared to admit that when they got back to the flat she had gone so far as to kiss both men, but she maintained to the end that she had been raped. The second of the two men said that as regards the sex he had been in the other room and came into the bedroom and found that the girl had already been possessed by his friend and that she made certain objections to having sexual relations with him, but he thought that they were not very serious and in the circumstances he went through with it. He was later found guilty of an indecent, assault. The other man was acquitted.
The question is whether an attempt should be made in any way to limit the ambit of cross-examination as to the relevance of the issue—that is, whether the previous sexual history of the woman is directly relevant—and the other aspect which is separate, where one is cross-examining as to credit, as it is called—that is, cross-examining to establish whether the woman is speaking the truth. The only way, if at all, to impose such a limitation would be by putting it entirely in the discretion of the trial judge. It would be wholly wrong within the ambit of Clause 2 to apply any limitation if the matter was regarded by defence counsel as being relevant to the defence.
In the case I have instanced, if the woman had on previous occasions had sexual intercourse with coloured men and if she had gone to a night club which was entirely the resort of coloured men for dancing, those factors were directly relevant to the defence of consent which they put forward. Thus, those matters would be relevant on that issue.
§ Mr. Alexander W. Lyon
Will the hon. and learned Gentleman say why? 850 This will be an issue which will be discussed in Committee. On the facts that he gave, I should have thought that it was not of any relevance. Whether the girl had had intercourse with men on previous occasions was not relevant to whether she would say "Yes" or "No" on the occasion in question. The hon. and learned Gentleman asserts that one of the accused admitted that the girl in fact said "No". If she said that, it does not matter how many times she said "Yes" previously.
§ Mr. Rees-Davies
The difference was this. The case was opened and presented on the basis that this girl was an English girl who had been raped by two coloured boys and that she had been encouraged to take them to her flat and had there been raped by them. The case looked to be about as open and shut as any case could be.
The line for the defence was "That is not the picture at all. She is, in fact, a girl who wanted and had every intention of having sexual intercourse with one or both of the coloured men that evening." It was directly relevant to that to establish the girl's previous sexual disposition. First, was this a white girl, one who went with coloured men or not? Let us face it, most white girls do not go to bed with coloured men. So the first part was to establish that the girl had had sexual affairs with coloured men in Jamaica before she came to this country.
The second matter was to establish that when the girl went out that night she did not go out as an ordinary girl might go out—for dancing—but went out to a club used only by West Indians and there associated with girls who were consorting and cohabiting with West Indians. That was directly relevant to the issue of consent. Whilst the girl was there at that club, she was seen with these two men necking and carrying on in amorous fashion with them. She then left the club with them at half-past one to return to her own flat.
All those facts, which dealt with the girl's previous sexual disposition, would be directly relevant. They would not have been relevant if she had had affairs with white men, although they might have 851 been matters going to credit. Supposing that she had had three or four such affairs and was not a virgin, I am prepared to concede that that might not have been relevant to the defence.
Under Clause 2 of the Bill, cross-examination directed to establishing those facts could not have taken place, but in that trial those matters were ruled to be properly in order. If it had been ruled out, the accused could easily have been wrongly convicted.
The hon. Gentleman suggested that there are many statements which are out of date. I take issue with him on that. Let me refer to the most recent statement of the present position of the law, in the case of Krausz, reported in volume 57 of Criminal Appeal Reports. It states that it is the settled law that she who complains of rape or attempted rape can be cross-examined about, first, her reputation and moral character; second, sexual intercourse between herself and the defendant on other occasions; third, sexual intercourse between herself and other men; and that evidence can be called to contradict her on the first two but not on the third.
The Heilbron Report suggests that we throw out the first and the third of these points. It says that the general reputation and moral character are irrelevant. I entirely disagree. It says that sexual intercourse between the complainant and the defendant on other occasions is relevant. Obviously, that must be so. It says that sexual intercourse between the complainant and other men which she cannot rebut is always irrelevant. I say that it may be irrelevant in certain cases and that it should be left to the discretion of the judge but that there are cases where it is extremely relevant.
Indeed, a particular disposition may also be extremely relevant. If somebody is in some way "kinky", to use a word which has already been used in this debate, or has a disposition for particular types of sexual performance, these matters may be very relevant. The fact that somebody engages in that type of behaviour with another man and then is alleged to have engaged in precisely that type of "kinky" behaviour when she is the complainant in a case may be adduced to show that she has a disposition in that regard.
852 I concede that in the matter of credibility—that is to say, in the field of credit—of a woman who is being cross-examined to show that she is untruthful, I should like to see a wider discretion. The judges exercise it, and the House of Lords has power to do it if they think it right. Merely to say "Did you sleep with Tom Jones, or with some other man, on the night of such and such?" in order to establish that when she says "No" she is a liar, is wrong. However, I have not heard that done very much at the Bar recently. The tendency today is to move away from that approach, and judges are well able, within the ambit of the common law, to give protection.
It would perhaps be a good deal more important to women, if the complainant were given protection with regard to cross-examination on her reputation and character if we were not going to give them the anonymity. What causes the real trouble from the woman's point of view is that she gives her evidence having been, as she alleges, raped. In a case there may be little corroboration where the defendant is a man of hitherto impeccable character. There may have been some friendly and proper association between the two parties previously. There may be a case in which the jury really is in great difficulty to resolve its verdict, but, because it has got to be satisfied beyond reasonable doubt, it gives the verdict properly to the accused without in any sense impugning the reputation of the complainant. However, because of the Press and the media in general, her case has been presented and, as a result, when the man is found not guilty, by implication the jury holds the woman to be guilty of having made a false allegation of rape, which can be disastrously damaging to her reputation.
It is plain, therefore, that the right way to deal with this class of case is to provide the anonymity through the media. Then, only those who attend the trial know the position and it cannot have the same effect. I do not believe that it is the nature of cross-examination which is the worry. It is the after effects which have been the worry in that type of case.
To sum up, it seems clear that this is a Bill which it is quite right to introduce in the circumstances. It would be necessary to introduce some legal matter, I think, to deal with the question of anonymity. I had always hoped that on that 853 issue the courts might have been able to lay down some principles, but they were unable to do so because the principles involved in the case really go outside the scope of the common law. Principles have clearly been laid down that the hearing of a case in camera is entirely limited to questions of security of the State and also with regard to other matters where there is a discretion in the civil field, but they are both related to domestic cases of matrimonials, the guardianship of children and matters of that kind. Therefore, it seems that judges are not in the position of treating this sort of case in the same way as they treat a case of blackmail.
I find it difficult to understand why blackmail should not be treated in the same manner as rape, and vice versa. I do not see the difference. In a case of blackmail one does not disclose the name of the person who has been blackmailed, in order to protect his reputation and in order to ensure, therefore, that he is not assailed. But the main reason is that the person who has been blackmailed will not come forward and give evidence that is required without that protection. So it is said also in the case of rape that the complainant in some instances is not willing to come forward and lay the complaint because she has not got the protection of her own reputation. Therefore, there seems to be a similar argument in these two classes of case.
If it is said, as it is, that judges are not able to exclude from publicity those cases where the complainant has made a charge of rape, it is certainly for this House to fill that lacuna, and a very important one it is. I agree that if we do that, it is perhaps an advantage to declare a definition so far as rape is concerned and, indeed, to make any modifications which may be necessary to ensure that it is clearly understood.
In so far as it will do these two things, I am in favour of this Bill. Most of all, however, I am in favour of the fact that it has given us the opportunity to try to take this subject into the field of common sense and reason, because it has been filled hitherto with a good deal of emotional clap-trap, and we ought to ensure that what we do is the right way of protecting the reputation of a woman and the sanctity of her body from attack, on the one side, and at the same time 854 ensure proper justice to the person who is being tried. It is in that light entirely that we should proceed.
I would not be prepared to do anything at all about Clause 2. If we cannot dispose of Clause 2 in Committee, my inclination would be to demand that this matter be fought out, contested and dealt with thereafter. While we may be able to produce the necessary amendments which may be required to clarify the law in Clause 1 and to give to the judge a wider discretion on whether to publish, nevertheless I would hope that we shall have very grave thoughts before we limit powers of cross-examination particularly on matters which are regarded by the defence as relevant to the defence.
I have made a longer speech on this occasion than ever before. I am sorry that you, Mr. Speaker, should have been in the Chair on such an occasion, because I have always advocated the 10-minute speech and have pursued that idea at all times when others wished to speak. I have spoken at great length, but I am the last person to speak on the Bill and I waited until the last so that I could speak at length.
§ 1.51 p.m.
§ Mr. Peter Bottomley (Woolwich, West)
I hope that my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) will accept it in the right spirit when I say that one does not always know what is going to happen next in this place. I forgive him for confusing me with the right hon. Member for Middlesbrough (Mr. Bottomley), who formerly represented Rochester and Chatham and to whom I pay tribute. Those who gave us a common name sired uncommon Members of Parliament.
I welcome the Bill, but the debate has suffered slightly because there are no hon. Members opposed to it. They could have gone through the provisions in detail and focused our minds on defects. When we are in general support of a Bill of this kind, it is too easy to give it a push on its way, expecting to meet it in Committee, while losing the opportunity to raise matters of doubt, which obviously exist. The Minister indicated some of them and we are grateful to him for pointing them out, whether or not we agree with them.
855 The Heilbron Advisory Group took evidence from many interested organisations and individuals which would welcome the opportunity to help the Standing Committee to resolve some of the doubts. I pay tribute to the work of the hon. Members for Hemel Hempstead (Mr. Corbett) and for Stoke-on-Trent, South (Mr. Ashley), and to the members of the Advisory Group for producing their Report fast and in a form that laymen can understand.
I turn to the case described by my hon. and learned Friend, involving a girl and two men from a club. It is right to emphasise that he was talking about an individual case, and that his comments would apply equally if the girl were a Young Liberal and the boys Young Communists. I am sure that he was not saying that this would happen only on ethnic grounds.
I experienced the same concern as others when the Morgan case came up. It was plain from those I talked to, partly during the by-election campaign last year, that people were concerned about the law relating to rape. I do not intend to go into the question of how many rape cases are brought to the attention of the police, and how many get to court or appear in the newspapers. Many cases of attempted or actual assault, which may or may not be rape, are not reported. There is room in the debate to put out the same call as that made a week or two ago about vandalism—that people who believe that they have suffered rape or indecent assault should report it, not only in their own interests but for the sake of the rest of the community. The authorities would then have more information and be better able to apprehend the guilty people. It is wrong that the painful impact of court proceedings should make people feel that they must put up with what has happened by themselves and that they cannot go for help to the authorities. That attitude puts more people at risk. The provisions for anonymity and for providing protection from cross-examination, however modified in Committee, will encourage more rape victims to notify the authorities.
I am concerned about the distinction between rape and indecent assault, because often there is not much difference in the suffering of the woman involved. 856 I look forward to the Committee's examining whether or not the Bill's provisions could be extended to cover cases other than rape. For cases involving children we have in camera proceedings, which give total anonymity. I do not accept the argument that publicity always helps the community at large. We do not need to know the names in many cases. I recognise that there are opposite points of view, but I cannot see the argument for restricting the Bill's provisions to rape alone.
I wish to take up one point on the Advisory Group's recommendation about the balance between men and women on juries. The recommendation does not destroy the right of counsel to make peremptory challenges. If a large part of the jury has been decided, but the rest of the potential jurors are of the wrong gender to provide a reasonable balance, once members of the right sex have come forward peremptory challenges can be made against them, but not on the ground of sex alone.
There is the problem of corroboration, and the evidence that a woman might have to put forward to show that she declined to have sexual intercourse. An analogy with that situation could be the situation of the bank manager if someone threatens to "do over" his wife and children if he does not part with the keys to his bank. In that case the man experiences a threat of violence but no violence is committed. The problem of what the woman does when she is threatened with violence, and rape is offered to her as an alternative, is a difficult one to solve. It should be clear what is the right course of action for a girl or woman in that situation. I do not intend to offer a solution, but it is something that should be aired, so that people know how they should behave.
I congratulate the promoters of the Bill and all those who caused the Heilbron Group to be set up last year. I think that there are many other areas in which similar advisory groups with distinguished members could work with speed, making it possible for us, in a non-political way, to make many changes in laws and attitudes so that people can live a better life. I think that the provisions of the Bill will allow many to live a safer life.
§ Question put and agreed to.
§ Bill accordingly read a Second time.857
§ Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).