§ '(1) After a person is accused of a rape offence no matter likely to lead members of the public to identify him as the person against whom the accusation is made shall either be published in England and Wales in a written publication available to the public or be broadcast in England and Wales except—
- (a) as authorised by a direction given in pursuance of this section or by section 4(7)(a) of this Act as applied by subsection (6) of this section; or
- (b) after he has been convicted of the offence at a trial before the Crown Court.
§ (2) If a person accused of a rape offence applies to a magistrates' court, before the commencement of his trial for that offence, for a direction in pursuance of this subsection, the court shall direct that the preceding subsection shall not apply to him in consequence of the accusation; and if at a trial before the Crown Court at which a person is charged with a rape offence in respect of which he has not obtained such a direction—
- (a) the judge is satisfied that the effect of the preceding subsection is to impose a substantial and unreasonable restriction on the reporting of proceedings at the trial and that it is in the public interest to remove the restriction in respect of that person; or
- (b) that person applies to the judge for a direction in pursuance of this subsection, the judge shall direct that the preceding subsection shall not apply to that person in consequence of the accusation alleging that offence.
§ (3) If, before the commencement of a trial at which a person is charged with a rape offence, another person who is to be charged with a rape offence at the trial applies to a judge of the Crown Court for a direction in pursuance of this subsection and satisfies the judge—
- (a) that the direction is required for the purpose of inducing persons to come forward who are likely to be needed as witnesses at the trial; and
- (b) that the conduct of the applicant's defence at the trial is likely to be substantially prejudiced if the direction is not given,
§ (4) In relation to a person charged with a rape offence in pursuance of any provision of the Naval Discipline Act 1957, the Army Act 1955 or the Air Force Act 1955, the preceeding provisions of this section shall have effect with the following modifications, namely—
- (a) any reference to a trial or a trial before the Crown Court shall be construed as a reference to a trial by court-martial;
- (b) after the word "Wales" in both places there shall be inserted the words "or Northern Ireland";
- (c) in subsection (2) for any reference to judge of the Crown Court there shall be substituted a reference to the court-martial; and
- (d) in subsection (2) for any reference to a magistrates' court and in subsection (3) for any reference to a judge of the Crown Court there shall be substituted a reference to the officer who is authorised to convene or has convened a court-martial for the trial of the offence or, if after convening it he has ceased to hold the appointment by virtue of which he convened it, the officer holding that appointment.
§ (5) An order in pursuance of section 49 of the Children and Young Persons Act 1933 (which among other things imposes restrictions on reports of certain court proceedings concerning juveniles but authorises the court and the Secretary of State to make orders lifting the restrictions for the purpose of avoiding injustice to a juvenile) may include a direction that subsection (1) of this section shall not apply to a person in respect of whom the order is made.
§ (6) Subsections (5) to (7) of section 4 of this Act shall have effect for the purposes of this section as if for references to that section there were substituted references to this section; and—
- (a) in relation to a person charged as mentioned in subsection (4) of this section, section 4(6) of this Act, as applied by this subsection, shall have effect as if for paragraphs (a) to (c) there were substituted the words "he is charged with a rape offence in pursuance of any provision of the Naval Discipline Act 1957, the Army Act 1955 or the Air Force Act 1955";
- (b) in section 5(3) of this Act the reference to the purposes of section 4(2) of this Act shall be construed as including a reference to the purposes of subsections (2) and (3) of this section; and
- (c) in relation to a person charged by virtue of this subsection with such an offence as is mentioned in subsection (6) of section 5 of this Act, that subsection shall have effect as if for the reference to section 4(1) of this Act there were substituted a reference to subsection (1) of this section'.—[Mr. John.]
§ Brought up, and read the First time.1924
§ The Minister of State, Home Office (Mr. Brynmor John)
I beg to move, That the clause be read a Second time.
With this there are the following related amendments: No. 26, in page 4, line 42, leave out Clause 4; and Government Amendments Nos. 33 to 37.
It might be convenient to the House if I explain that when the Bill went into Committee the relevant clause provided anonymity only for the complainant, and that the Government maintained that position in Committee. However, the Committee decided by a large majority that anonymity should extend to the defendant as well as to the complainant. The Government, having carefully considered the matter and the will of the Committee, have accepted that point of view. The new clause therefore seeks to enshrine in the Bill a proposal to give the necessary force to the Committee's decision.
Perhaps I might indicate briefly the scope of the new clause. Subsection (1) provides that, after a person has been accused of a rape offence, no matter likely to lead members of the public to identify him as a defendant shall be published except by virtue of the operation of this clause or unless conviction of the offence has taken place.
Under subsection (2), a person charged with a rape offence may himself apply for a direction to lift the prohibition, and if no such direction is obtained at the magistrates' court, he may apply to a judge at the trial in the Crown court. It would then have to be done if there were exceptional circumstances which referred to the defendant himself or if there were such exceptional circumstances as to be of public interest.
Subsection (3) deals with the question of a co-defendant who is charged with a rape offence. If for the purpose of collecting evidence it is necessary to lift the restriction on the name of his codefendant, he may apply to the judge for such a direction.
Subsection (4) applies the anonymity provisions to courts-martial. Subsection (5) relates to the Children and Young Persons Act, and subsection (6) adapts Clause 4, subsections (5) to (7), of the original Bill for the purpose of this clause.
Amendments Nos. 33 to 37 are technical and are designed to secure that in 1925 Northern Ireland the relevant provisions relating to anonymity for complainants and defendants are brought into force simultaneously when a Order is made by the Secretary of State.
§ Mr. Robin Corbett (Hemel Hempstoad)
I should like first, as the principal sponsor of the Bill, to thank the Government for coming forward with this new clause, which carries out the intentions of the work we did upstairs in Committee.
The House will remember that the Heilbron Report dealt fairly shortly with the matter of anonymity for the defendant. Paragraph 176 did not reject the possibility that the defendant should also have this anonymity but argued rather that this should wait until there was a review by a committee concerned with the criminal law generally. The report concluded, at the end of paragraph 176:we do not think it desirable to recommend changes in the law of rape which would make it more anomalous than it is at present".But the sentence did not end there, and I draw attention to the last three words of the sentence:without strong justification".It is that strong justification which, on balance, the Committee upstairs decided exists, though I readily acknowledge—this was commonly agreed during the discussion—the point made in the Heilbron Report that to this extent it would create a further anomaly in our criminal law. There is, I think, the general argument about the need as far as possible, and particularly in relation to the criminal law, to try to ensure equality between the defendant and the complainant before the law.
There has also to be taken into account —it was this factor which persuaded me to this point of view eventually—an assessment of the effect on the defendant of publicity arising out of a trial on a charge of rape, even though at the end of the trial he is acquitted.
My hon. Friend the Member for Derby, North (Mr. Whitehead) cited the case of a prospective parliamentary candidate who, a few months before a General Election, was charged with a rape offence, went through the trial and was acquitted. Nevertheless, his whole 1926 prospective parliamentary career was ruined by his attendance at the court. It does not need me to underline the effect of such an event on the selection bodies concerned with these matters. The very fact that someone offering himself as a candidate has been through the courts, even though he has been acquitted, could—and in that case did—weigh heavily with those making such a decision.
In a less dramatic way, it is helpful to look at this matter in the context of a small town. There is the man's wife, his children and his immediate family to whom he has to say "I have today been charged with the offence of rape". There is the devastating effect on them of that knowledge. There are his friends in his social life and at the pub around the corner from where he lives. There are his workmates and, perhaps more important, his bosses, those who take decisions about his future employment and, indeed, about his future career. Their reaction is understandable, but there is the risk that when such a charge is laid against a man, even if he is acquitted, the stigma remains with him throughout his life in the community within which he lives and works.
What I am trying to say—I do not say uniquely, but this is the circumstance about which we are talking—is that acquittal on a charge of rape is not enough finally and thoroughly to clear a man's name and cleanse his character. There will always be those in the community and at work who are taking decisions about career prospects of the man who will say "No smoke without fire", and that can be most damaging to the individual.
I want to make quite clear, Sir Myer, that I am not in any way seeking to support justice in the dark or secret courts. That is not what is being suggested in the clause. I consider that the naming of a defendant is not crucial to the exercise of justice in the open. I admit. Sir Myer, that this opens a wide door—
§ Mr. Deputy Speaker (Sir Myer Galpern)
Order. Just for the sake of the record, I hope that the hon. Member will extend anonymity to me also while I am in the Chair and address me as Mr. Deputy Speaker.
§ Mr. Corbett
I am sorry, Mr. Deputy Speaker.
I admit that this will open a wide door in relation to other criminal offences, but I do not apologise for that because I believe that as a result of the discussions in Committee it has emerged that it would be a good idea in our changed society to review the whole principle of the automatic naming of defendants in criminal charges. This is a wide door. It is a new principle that we are seeking to establish in this case, but it is important and is one to which I hope that others will pay some attention. Here at least we can say that as far as this offence is concerned, and it is one of the most horrific and serious with which a man can be charged—the more so if acquittal follows—there is the strong justification for which Heilbron was looking. I thank the Government again for bringing in the clause and I urge the House to support it.
§ Mr. Deputy Speaker
In case it has not been appreciated, I remind hon. Members that with New Clause 1 we are discussing Amendments Nos. 26 and 33 to 37.
§ Mr. John Lee (Birmingham, Hands-worth)
I take it from what you have just said, Mr. Deputy Speaker, that the scope of the debate will be wide. The amendments standing in my name, particularly No. 26, seek to delete the whole of Clause 4 and give us an opportunity for the wide-ranging debate that this matter merits. Before I embark on a rather wider discussion of the matter, I should say that my hon. Friend the Under-Secretary of State has conceded the point, perhaps a little belatedly. The Home Office failed at the outset to recognise the enormity—I do not think that is too strong a term to use—of allowing, in a situation like this, anonymity for one party but not for another.
As the Bill has emerged from Committee, until the amendment in the name of the Minister is passed, someone who brings a completely groundless and, perhaps, malicious accusation of rape can be protected both from the social disapproval of the community and, in most cases—I shall refer to one exception in a moment—from other redress at the hands of the unfortunate defendant, while 1928 the defendant's name can be stigmatised even if he is fully acquitted. This is quite intolerable, and my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) is to be congratulated on conceding this point.
The one rare exception—as the hon. and learned Member for South Fylde (Mr. Gardner) will know, as a practising member of the Bar—is that there is a theoretical possibility that after a successful acquittal, an action for malicious prosecution and wrongful arrest could be brought by the defendant, but the ingredients needed to prove that malicious intent or injury are uncertain and extremely difficult to prove. It is, of course, one of the few civil actions that are triable by a jury. I have, on occasions, been a little cynical of juries, in references to "jury roulette", but certainly, in respect of civil matters, juries can be perplexingly unpredictable in their attitude.
There is no reason why a complainant in a rape case should be more privileged than anybody against whom other accusations are made. There are graver accusations than that of rape, such as accusations of espionage, treason and blackmail, which are sometimes cloaked with anonymity. Indeed, for some people even a simple allegation of shoplifting carries with it just as much a stigma as a charge of this kind, which often carries with it the certainty of imprisonment. I read in the newspaper this morning about the case of a justice of the peace charged with the shoplifting of goods worth nothing more than 50p. Although he may be vindicated on appeal his name and status are known, and so is the allegation. I doubt very much whether the anguish that he will continue to sustain will be any less than that of either of the parties in a rape offence—the complainant, if she is disbelieved, or even believed, or the defendant, if he should be vindicated by a jury.
In war time, in official secrets cases, it was the practice for the names of the defendants and witnesses and, indeed, everything to do with an espionage charge, to be blanketed with a cloak of secrecy, for obvious and understandable reasons. Sometimes, the first that one ever knew of the existence of a spy trial was the news that defendant had been executed. But there is a totally different situation in war time.
1929 There have been a number of instances in recent years, including that of a former hon. Member of this House, who was tried at the Central Criminal Court a few years ago on a long indictment, including many allegations of espionage involving an East European country. Publicity appertained to his arrest, to his committal for trial and even throughout the trial, to such an extent that every time the jury came back to ask questions it was clear that there was disagreement amongst them on certain matters.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
May I ask my hon. Friend what is the logic of saying that because we have publicity in other cases we ought not to have publicity in this case?
§ Mr. Lee
If my hon. and learned Friend will bear with me, the point I was making, perhaps not very well, was that I do not see why either of the parties in a rape offence situation—complainant or defendant—deserves to be priviliged in relation to the law and in respect of an allegation which, in fact, is somewhat less serious than other offences that we have never enveloped in the cloak of secrecy.
What is the position of the former hon. Member for Morpeth? We all know his name—Mr. Will Owen. He served for many years in this House and was acquitted, of the charge bought against him, but there was always a stigma, in the sense that those who knew him were aware that he had been accused and had gone all the way to a jury acquittal. Serious though rape may be, an accusation of treasonable kind is a more serious and far graver matter than that. No one extended the cloak of anonymity to the former hon. Member for Morpeth, although—this brings us back to, and reinforces, the justification for the Government's attitude on this matter—anonymity was extended to the Special Branch witnesses who gave evidence at the Central Criminal Court trial in 1970 against the former hon. Member for Morpeth. I think that answers my hon. and learned Friend's question.
I turn to the basic reason why I am seeking to delete Clause 4, which gives the whole scope of anonymity. I know the rationale in the mind of my hon.
1930 Friend the Member for Hemel Hempstead. It is that the clause will remove one deterring factor from the emotionally and psychologically unbalanced woman who is minded to bring reckless accusations of this kind. I understand and respect the views of my hon. Friend. It is perfectly true that a number of women, victims of appalling attacks, have had the additional ordeal not merely of the witness box but of the publicity involved. We do not need much imagination to understand what that can mean. 11.30 a.m.
To draw an analogy from civil law—the law of defamation—in the celebrated case of Yussupoff v. Metro-Goldwyn-Mayer, a civil court held that to publish the suggestion that a woman had been the victim of rape was itself defamatory, and the High Court awarded damages. I can understand the reasoning behind the clause, but what troubles me about the purpose behind it is that, bearing in mind that the only way that we can effectively test the veracity of a witness is to subject him to some measure of ordeal, and that a legitimate ingredient in that element of ordeal is the measure of publicity that attaches thereto, we make it that much easier for wrongful convictions to occur.
§ Mr. Corbett
Does my hon. Friend accept that a large number of women are deterred from properly laying charges of rape by the fear that their names will appear in the local paper and perhaps even in the national Press? Apart from what happens in court, does not that fear prevent them from seeking redress and justice? I can substantiate that from my postbag.
§ Mr. Lee
I understand that, but I can cap that example by relating an experience of mine without revealing the identity of the persons concerned. My wife and I heard screams outside our house. At first we took no notice, because we thought the noise was made by children playing. It became apparent to me that there was an urgency about the screams which suggested that something serious was occurring. I went outside, as did several of my neighbours, to find that a girl had been attacked. It was not a sexual attack; someone had attempted to murder her. I dialled 999 and the police arrived. We did not catch 1931 the attacker, although both the victim and some of the neighbours had a shrewd idea who he was.
The police wanted to prosecute. This was an offence that would at least have supported the charge of assault occasioning bodily harm, contrary to Section 2 of the Offences Against the Person Act 1861. Indeed, there could have been an indictment for attempted murder. Because the girl was reluctant to pursue the matter further, and regarded as abhorrent the further ordeal of giving evidence of the attack—knowing how it could be sensationalised just as easily as could a sexual offence—the matter was never pursued and the offender, whose offence was at least as serious, if not more serious, than a sex offence, was allowed to go free.
There is a danger of getting sexual matters in the wrong perspective. Offences against the State, offences of violence and, in certain contexts of society, serious allegations of dishonesty, carry with them a moral stigma just as anguish-causing and just as demanding in terms of ordeal as any sex offence. Without being unseemly and frivolous, perhaps I may point out that it is said that Malcolm Muggeridge, before he contracted religious mania, once said that the English had sex on the brain, which is not the most suitable place for it.
I have profound misgivings about the clause. The Government have done something to improve it. Without the Government's amendment the position would be indefensible.
I wish to seek your guidance on procedure, Mr. Deputy Speaker, and raise a point of order in my speech. Although it was not made clear before the debate started, I assume that there will be separate Divisions on the amendments. I wish to support New Clause 1, but I also wish to move my amendment separately.
§ Mr. Anthony Fell (Yarmouth)
A few moments ago the hon. Gentleman astounded me by accusing Mr. Malcolm Muggeridge of religious mania. Anyone less maniacal than Mr. Malcolm Muggeridge I cannot imagine.
§ Mr. Edward Lyons (Bradford, West)
My hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) should remember that he is absolutely privileged and he should consider his words with care before saying that someone is maniacal.
§ Mr. Lee
I suppose that my comment could be regarded as unkind. If my hon. and learned Friend the Member for Bradford, West (Mr. Lyons) thinks I am being unduly discourteous, perhaps I should not have said it. Religion sometimes leads people up strange paths and, as an unashamedly unreligious person, I deplore the baleful influence of some religious attitudes. I withdraw the comment if my hon. and learned Friend thinks that I am taking advantage of parliamentary privilege.
I was addressing you on a point of order, Mr. Deputy Speaker—
§ Mr. Deputy Speaker
It is unusual for a point of order to be interwoven in a speech. It makes it difficult for the Chair. No assurances have been given. It is most unusual for separate Divisions to be allowed on a measure of this kind. However, if the hon. Member will have a word with me after he has completed his speech, I shall listen to whatever representation he has to make. So far, no assurance has been given about separate Divisions.
§ Mr. Lee
I am grateful to you, Mr. Deputy Speaker. I shall discuss the matter when I have completed my remarks.
The difficulty that lies behind the Bill is brought about by a commendable though, I suspect, wrong-headed anxiety occasioned by a number of particularly horrendous rape situations that have arisen in the past year or so. There was one case in particular that was so horrifying that one can understand only too well the desire to make it easier for victims to pursue a well-founded and thoroughly meritorious complaint. I do not know whether this is the appropriate point at which to do so, but I shall put forward one other factor that is germane 1933 to this subject—namely, the question of identity.
It so happens that in the last fortnight there have been a spectacular number of instances in which convictions have been wholly set aside, and in which the Home Secretary at least has felt that the sustaining of a conviction was so unsafe because of the suspect character of the identification evidence that he has released the defendants. Indeed, I note that the hon. Member for Rochdale (Mr. Smith) suggested that a special tribunal should be constituted to sift suspect identification cases. There may be some merit in that suggestion, but since I know from personal experience how overloaded is the Court of Appeal, Criminal Division, I am not sure that the Lord Chief Justice will thank the hon. Gentleman for making such a suggestion, since it may lead to a further complication in the administrative arrangements of the High Court. Nevertheless, it may be that the number of such cases will develop from a trickle into a flood.
Often where the defence is a total denial of involvement the prosecution evidence depends almost entirely on the identification of one person. Sex, whether consensual or non-consensual, is still for the most part a private activity. It is not carried out knowingly in the presence of other witnesses. Therefore, in a situation in which somebody disappears after committing an alleged rape, one is dependent on a lone person's identification of the offender. In other words, if we give to a complainant the cloak of anonymity we shall make it that much easier for a person not to take seriously the demanding task of identification. I do not say it is more than a marginal factor, and most of the time one is dealing with people who are dealing seriously with genuine situations, but the danger of miscarriage of justice must be in the forefront of our minds.
It is bad enough that witnesses can be honest but mistaken; it is more difficult still if a witness is not wholly honest and, perhaps, not too careful about the enormity of the consequences of misidentification.
I put my basic objection to Clause 4 on the anomaly that this Bill, if passed with that clause intact, will cause in 1934 relation to the general body of English criminal law.
§ 11.45 a.m.
§ Mr. Ivan Lawrence (Burton)
I have the utmost misgivings about this new clause, and those misgivings may be widely shared by lawyers. In a trial of rape it distorts the fabric of our criminal justice to single out the defendant for the special privilege of not having his name drawn to the attention of the public.
If the arguments that give him this special consideration are valid, they are equally valid for every defendant against whom a false accusation is made. If we were to extend this principle to other offences widely spread across the criminal calendar, it would be a change of such substance that I believe a great deal more time and application by all should be applied than has been the case up to the present. There is no suggestion from any quarter that defendants who are acquitted should not receive publicity. The main reason is that if we start on that slippery slope we shall end up by having a system of justice which, if not secret because people will be able to go into a public gallery and attend hearings, will be seen to be secret because publicity will not be given. It has always been thought to be one of the great protections of defendants and victims, and part of the system of justice of which we are proud, that the public at every moment have a right of access to information disclosed in those courts.
I have considerable sympathy with the Heilbron Committee, which considered this matter and which said, in paragraph 175:… we do not think it desirable to recommend changes in the law of rape which would make it more anomalous than it is at present, without strong justification. …We think it erroneous to suppose that the equality should be with her—it should be with other accused persons and an acquittal will give him public vindication.There does not appear to be the strong justification for protecting the defendant that there is for protecting the complainant.
Although it is a matter that has properly been raised and that we considered to some extent in Committee, the principle involved is to great that it should be considered at far greater length before we introduce this concept into our law. 1935 A committee is now discussing sexual and other offences, and we shall be hearing the more considered views of the Criminal Law Revision Committee on this matter. I do not think that we should rush ahead today with an amendment that, in effect, distorts the fabric of our system.
I have some sympathy with the point made by the hon. Member for Birmingham, Handsworth (Mr. Lee), that if secrecy was accorded to a defendant it would help the police—who in many cases act as a sort of filter against improper, unjustified allegations made by women who are unstable—to be able to say to such women "Even if you press this matter, there will be no publicity against the accused". But that situation arises in probably only a small number of cases, and the police can in other ways act as a more substantial filter than having to rely upon this particular lever—if that is not an absurd mixture of metaphors. For that reason alone, there would not be sufficient justification for distorting the fabric of our law.
Therefore, I ask the Minister of State to think again, and to hold his horses until the ramifications of this clause, in terms of the whole fabric of our criminal law, are fully understood in much greater depth. If that is done, I think that it would meet with the agreement of most lawyers and most people who have thought a little longer about this matter than others may have done—others who are more easily reflective of the very strong emotions that this whole subject arouses.
§ Mr. Jack Ashley (Stoke-on-Trent, South)
I do not propose to address myself to the long, rather rambling ragbag of ideas put forward by my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee), because I do not believe in using this debate as a vehicle for trotting out every idea that I have ever had about the subject and, secondly, because many Members who served on the Committee have already dealt in great detail with those points, which have now been repeated on the Floor of the House.
However, this is a very important new clause that is proposed by the Govern- 1936 ment and supported by the main sponsor of the Bill. I want strongly to support it. The succinct view put forward by the hon. Member for Burton (Mr. Lawrence) has a great deal of force, admittedly, and I respect it very much. I can understand his feelings. In fact, the Heilbron Advisory Group, as he said, shared those fears and was against extending anonymity for men, for the reasons that the hon. Gentlema so clearly outlined.
However, we should remember how this whole controversy began. Many of us, on both sides of the House, were very concerned about the way in which lawyers were indulging in character assassination of women who had been raped. These assassinations would then be quoted at great length in the Press. I know that some of my hon. Friends say that cross-examination is a vital part of justice. That is fine. I am not against cross-examination. But I am against character assassination, and there are many cases of women who are forced in court into a humiliating position when irrelevant matters are dragged in. The fact is that many women suffered as a result of this kind of cross-examination, and were emblazoned in the Press. I think that most of us will agree, therefore, that women should be given anonymity. That is one of the most important aspects of the Bill.
The matter becomes controversial, as Heilbron said, on the question whether we ought to give equality with other accused persons or with women. Much as I respect Heilbron and hon. Members who oppose the clause, I believe that men should be given anonymity as well, on the same basis as women. I recognise that, as my hon. Friend the Member for Handsworth said, there are other more serious crimes. There is murder, and arson, and we have to answer the question why we should not grant anonymity to people accused of those crimes.
§ Mr. Lawrence
How does it protect the complainant against character assassination to give anonymity to the defendant?
§ Mr. Ashley
The hon. Member is dealing with a separate part of the Bill. There is another part of the Bill—with which I cannot deal at present in detail, because I would be ruled out of order—that deals with cross-examination. As the hon. Gentleman will realise, that 1937 aspect of the Bill prevents lawyers in court from bringing in a woman's past sexual history. This new clause will not prevent cross-examination or character assassination, but another part of the Bill will do that. I know that the hon. Gentleman will be aware of the clause that we cannot discuss now. I hope that that deals with the point he raises.
I was about to try to answer the charge that there are other crimes that are more important and for which there is no anonymity given to the defendant. First, let me deal with the general charge put forward by hon. Members. All this talk of "Do not rush ahead" and "the slippery slope" is the standard argument against progress of any kind. Whenever any hon. Member brings forward any kind of progressive suggestion, it is always said "You must not rush ahead". But women have been raped since the beginning of time. We have been discussing the law regarding rape year in and year out, ad nauseam, and the time has really come for action now.
There is a time when one needs research and discussion, but not on this subject, because we know all about it. Women have very clearly expressed their views themselves, individually and through organisations, and women Members have expressed their views in the House. We do not give anonymity to other people because of the argument put forward by Heilbron—that we do not want secret justice. The reason I suggest anonymity for men in this case is because rape is an exceptional crime. No other crime is emblazoned in the Press and attracts so much public attention as the shout of "Rape"!
The fact is that acquittal of a charge of rape does not lead to vindication because of the special attitude of the public towards rape. It is as simple yet as profound as that. If a man is charged with murder and acquitted, that is generally the end of the matter and the public accept it. If a man is charged with rape and is acquitted, the people say "Oh, it was probably a crafty lawyer", or "One could not really prove it, because rape is never done in public. It is done in private."
Given the prevailing public attitude towards rape, I believe that we have to accept the reality and make special pro- 1938 vision for it. That is why I strongly support the new clause. I want anonymity for women and anonymity for men in these special circumstances. I hope that the House will take due regard of those special circumstances in the Bill.
§ 12 noon
§ Mr. Edward Gardner (South Fylde)
I welcome the hon. Member for Pontypridd (Mr. John) on his transition from defence matters to home affairs and congratulate him on his appointment as Minister of State, Home Office.
I, together with many other hon. Members on both sides of the House, have felt for a long time the need to protect the complainant in a rape case against the anguish of publicity which is inevitably added to the distress that goes with an experience such as that which a victim of rape has to suffer. I welcomed what the hon. Member for Stoke-on-Trent, South (Mr. Ashley) tried to do by way of his Ten-Minute Bill, and what my hon. and learned Friend the Member for Ruislip-Northwood (Mr. Crowder) tried to do in his Ten-Minute Bill, which had the same intention.
Like hon. Members on both sides of the House I have felt for a long time that if it were possible, as indeed it is, to give the victim of a blackmailer protection from publicity, the argument for giving the same protection to the victim of a rapist was even stronger. The victim of a blackmailer is usually a person who has done something of which he or she is ashamed. Therefore we must bear in mind that, in the case of the victim of a rapist, we are dealing with somebody who has nothing to be ashamed of.
§ Mr. Gardner
Necessarily. In the ordinary way, nothing but appalling humiliation attaches to the experience.
The hon. Member for Hemel Hempstead (Mr. Corbett) put forward his views cogently. It is argued that if we are to protect by way of anonymity the victim of a rapist, we ought in fairness to extend that anonymity to the defendant. I look upon that argument with a great deal of anxiety and caution. The Heilbron Advisory Group made it clear that it viewed the implications of anonymity for defendants as being an extension of a 1939 principle which could have the most remarkable effects upon the law as a whole.
As the hon. Member for Birmingham, Handsworth (Mr. Lee) has said, why should a defendant in a rape case be in any better position than the defendant charged with other crimes that might be ever more serious, or, indeed, less serious? The example of the person who is charged with shoplifting has been given. The person who comes before a court with a respectable background and good character and standing in society has as much to lose as anyone who comes before a court charged with a more serious offence. In fact, he may have more to lose. The fact that a crime is grave does not necessarily mean that the consequences of being charged with the lesser crime cannot be equally damaging.
There may be an argument to be adduced, though personally I do not appreciate it or see it as being forceful enough, to justify the extension of anonymity to defendants. I do not believe that it is an argument that we should follow or, at this stage, even consider. We are considering a narrow point, and I think that it is a bad point.
§ Mr. Stainton
May I briefly recount something that occurred to me? I was holding an interview at a constituency surgery as a Member of the House. The last constituent to attend that morning was a female. Although my divisional secretary had been present in the suite of offices, she had at this stage gone home; we had effectively reached the end of the surgery. To my alarm—I cannot wholly recall my feelings now—this female started to undress herself. Various situations evolved from that. Happily, the ultimate did not occur. But I could have found myself in an extremely difficult situation.
§ Mr. Gardner
I entirely agree with my hon. Friend that a man, however respectable and innocent he may be, may find himself in the direst peril. Such situations occur not only in offices and private places but in public railway carriages. I do not think one can take these exceptional—I shall not say "eccentric" —and dangerous situations as being a guide to our decision whether we should 1940 give the blanket of anonymity to the victim of the crime of rape. I have heard no argument so far that comes near to convincing me of the need, or justification, for extending anonymity to the defendant.
The hon. Member for Stoke-on-Trent, South said that we should not delay reforming the law. The law stands in need of many reforms; I do not dispute that. If we are to have a root-and-branch reform, of which I suggest this is an example, we must be careful not to cut down the tree. We are in danger if we introduce not a new principle but an extension of principle over the whole field when there is no justification for it.
The hon. Member for Stoke-on-Trent, South talked with indignation—I share his indignation—of character assassination in court. I hope he will be the first to understand that the purpose of the judiciary is to ensure that there is a fair trial. If there is irrelevant character assassination of the kind to which he has referred, it is not a fair trial, and I should be the first to join the hon. Gentleman in condemning it. But, at the same time, I pay tribute to the members of the judiciary who can, and in fact do, prevent this sort of thing from happening. However, no doubt, when we reach the appropriate stage of our proceedings, we shall be able to refer to the clause dealing with this matter.
§ Mr. Ashley
Can there be a fair trial if counsel, in court, is able to indulge in character assassination because that is permitted under existing legislation? One of the main purposes of the Bill is to ensure that such irrelevancies are not allowed. By excluding the woman's sexual history, we shall prevent that kind of character assassination, which is now legitimate, regrettable though that is. It will not be allowed if and when this Bill becomes law.
§ Mr. Gardner
I do not wish to go outside the narrow boundaries of this debate, but I am invited by the hon. Gentleman to deal with a point that is not perhaps entirely outside them. Unless a matter is relevant, it would be wrong for a court to entertain evidence on that issue, and if anyone in a court of law attempts to bring in for consideration a matter that is irrelevant to the point at 1941 issue, he will be stopped from continuing either with his allegations, be it in examination-in-chief or in cross-examination.
For myself—I hope that hon. Members will join me in this view—I have complete confidence in the general proficiency of the judiciary in its ability to stop this kind of misuse of our courts. Of course, it happens; it happened recently, in a case raised yesterday in the House, on the Police Bill, in reference to the man Scott. There will be times when one cannot prevent someone from saying something in court. One cannot prevent perjury in court merely by passing an Act of Parliament against the liar. But one can show the intention of the legislature, as this Bill sets out to do in its declaratory clauses.
But on the essential and immediate point, I have to say, regretfully but strongly, that I am opposed to New Clause 1; I am opposed to extending anonimity to the defendent. Before we do anything as radical as this I want to see the Criminal Law Revision Committee give full consideration to the point, so that we can examine all its implications and act upon any recommendation of that committee.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
As one who can claim to have had considerable experience over the years in prosecuting and defending in rape cases, I support New Clause 1 strongly and oppose the deletion of Clause 4.
First, we have to recognise that a great deal of harm is caused to the defendant and, of course particularly to the woman, by the allegation of rape. For the defendant, the mere insertion of his name in a local paper on the charge which is being made against him is sufficient to cause irreparable harm to him and to any position of standing that he has in the community. People will say that there is no smoke without fire, even though it is a "quickie". It is therefore extremely important that the defendant's anonymity should be preserved.
§ 12.15 p.m.
§ Mr. Weitzman
I dealt with that point in an intervention earlier, but I will do 1942 so again. The defendant may desire to have his name published, and the new clause provides for that in subsection (2). It seems to me utterly illogical to say that, because we publish names in other crimes, in a crime of this nature the name ought therefore to be published. I do not see the logic of that. It may be, of course, that in other cases publication of a name causes harm, and one appreciates that. But we are dealing here with an extremely peculiar crime, that of rape. As far as the woman is concerned, it surely unanswerable that if her name is published the distress that may be caused, even though she is vindicated, is so terrible in its way that the case for anonymity is clearly made out.
As for the defendant in a case of rape, where a conviction can be made upon uncorroborated evidence, where it is often said that it is so easy to make the allegation and so very difficult and often impossible for a person to defend himself against it, the peculiar case of rape in its way calls for a distinction from other crimes and I am all in favour of anonymity being given, as it is given by New Clause 1.
§ Mr. Lawrence
Would not the hon. and learned Gentleman give the same concession to defendants who were defending themselves against charges of blackmail, sexual offences upon children or offences for serious dishonesty? If not, what is the distinction in seriousness to the character of the defendant between rape and these other offences?
§ Mr. Weitzman
In blackmail cases we know that anonymity is often given and preserved by the court. In the case of sexual and other offences I believe that there may be a case for consideration, but that could be dealt with by the Criminal Law Revision Committee. We have, however, the opportunity now of dealing with this peculiar crime of rape, and it seems to me essential to insert a clause of this kind in order primarily to protect the woman but also to protect the defendant in a case where it is extremely difficult for him to prove his innocence. I am therefore entirely in favour of New Clause 1 and against the deletion of Clause 4.
§ Mr. John
The debate has ranged on two levels. The first was the level of 1943 my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee), who not only opposes new Clause 1, although by some perverse logic he seems to welcome it as a certain measure of equality, but seeks to delete the protection already given in Clause 4 to the complainant. As I understand it, he is unique in the Chamber at this time on that issue. I ask the House firmly to resist Amendment No. 26.
I shall be brief because the arguments have been well rehearsed already this morning and need little underlining by me. First, there is the slippery slope argument. As my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) has said, it is trotted out frequently. In particular cases it is fairly convincing, but it is raised far too widely in this context to be acceptable.
The hon. Member for Burton (Mr. Lawrence) was seeming to suggest that we could not make a particular reform without reforming the whole field. In other respects that would be doctrinaire, because a great feature of the British Parliament, which it trumpets on all occasions, is that it is pragmatic. If that is so, it can deal with matters on a case-by-case basis, judging whether in the particular circumstances of the case it is right or wrong to make the particular reform. Therefore, the slippery slope argument in this case is, I suggest, because it might affect other cases, not entirely relevant. We must judge in the circumstances of this case whether it is right to make that particular amendment.
§ Mr. Lawrence
The Minister misrepresents me slightly. I was intending to convey that it would be wrong to make an anomalous situation from that which generally applied, where the principle which applied generally was not shown to be different from the principle which would apply in the case of the proposed anomaly. In other words, where the principle is the same, the slippery slope argument is a strong one. The slippery slope argument is a weak one only where the principles are different.
§ Mr. John
The hon. Gentleman and I would, I think now agree the nub of the matter to be whether the question of rape in itself is sufficiently special in the cir- 1944 cumstances of the crime to extend anonymity to the defendant. There are some crimes which are accounted, even now, to be of sufficient exception to extend the exception to the complainant. I am thinking particularly of blackmail. I have sought to draw a distinction between the case of my hon. Friend the Member for Handsworth and that of the hon. Member for Burton. There is general agreement in the House that Clause 4, inasmuch as it relates to the complainant, is justified and that, therefore, the nature of the crime of rape itself is sufficiently special to warrant the complainant's being protected.
If that is so, I should have thought, with respect to the hon. Member for Burton, that it is illogical for him to say "But, of course, it is not special." He has already conceded that in relation to the complainant it is special. My view would be that the crime itself is special. The contributions on all sides this morning have sought to suggest the very special nature of the crime of rape. Therefore, if it is special for the complainant, there is at least an argument that it is special for the defendant. This is the argument put by my hon. Friends on this occasion.
The Helibron Report came down, as hon. Members have said, somewhat hesitatingly against the recommendation of anonymity for the defendant. There was a long debate in Committee, and I do not thing that the hon. Member for Burton is being entirely fair to anyone in suggested that this is a kind of rushed decision. It has been thought about by the Government following the carrying of the amendment, and in my judgment, notwithstanding some of the points that hon. Members have put that it is right and proper that we should carry the new clause and extend anonymity to the defendant—
§ Mr. Edward Gardner
Has the Minister had any advice from any of the Law Lords or Law Officers, or is there any possibility that the Criminal Law Revision Committee might now have views which would be of assistance to the Government, so that when the Bill goes to another place and is considered there, such views and opinions could be put before those in another place and advantage taken of them? This really is an 1945 attempt to widen a principle very dramatically. Before undertaking it, would it not be wiser and better to take the best advice available?
§ Mr. John
I thank the hon. and learned Gentleman for that intervention. Of course, Ministers receive advice. The hon. and learned Gentleman gave certain particular instances. I am bound to tell him that, in my judgment, my advice to the House will be to carry the new clause this morning because we believe it to be right and consistent to do so. But, of course, anybody wishing to tender advice upon the subject—which is not free from difficulty, as the hon. and learned Gentleman says—is welcome to do so, and it will be given consideration. This is not the end of the legislative process on the Bill, and any subsequent advice would, of course, be considered.
With that in mind—
§ Question put, That the clause be read a Second time:—
§ The House proceeded to a Division—
§ Mr. David Stoddart and Mr. John Ellis were appointed Tellers for the Ayes and Mr. John Lee was appointed a Teller for the Noes, but no Member being willing to act as a second Teller for the Noes, Mr. DEPUTY SPEAKER declared the Ayes had it.
§ Clause accordingly read a Second time, and added to the Bill.