§ 3.12 p.m.
§ Lord Williams of Mostyn
My Lords, I beg to move that the Bill be now further considered on Report.
§ Moved, That the Bill be further considered on Report.—(Lord Williams of Mostyn.)
§ On Question, Motion agreed to.
§ Clause 40 [Restriction on evidence or questions about complainant's sexual history]:
Lord Ackner moved Amendment No. 55A:
Page 28, leave out line 24.
§ The noble and learned Lord said: My Lords, with the leave of the House, in moving Amendment No. 55A, I shall also speak to the other amendments in this group which are tabled in my name. They are all designed to achieve one specific end; that is, to ensure that the status quo remains.
§ The subject matter of Clause 40 is the restriction on evidence or questions about the complainant's sexual history. The issue arising out of the amendments that I seek to put forward is whether the statutory provision restricting that material—it was brought into force over 25 years ago and runs to two short paragraphs in the legislation—should be supplanted by a new clause that 13 takes over a page in the Bill before us; it is convoluted, difficult to follow and is otherwise in many respects undesirable. I hope that I put the matter dispassionately.
On the third day of Committee stage the noble Lord, Lord Cope, said this:
These are difficult matters. Many of the legal profession, the judiciary and the public feel strongly about them. However, ultimately we have to try to make a judgment as to whether the courts should decide what evidence it is proper to bring out in the interests of justice rather than bowing to the clamour of those who have misunderstood proceedings as they take place at the moment. Clearly, complainants should be defended. But defendants have the right to have their interests override those of complainants as it is their freedom and they who are on trial". —[Official Report, 8/2/99; col. 57.]
That very much reflected the views of the Lord Chief Justice on Second Reading at col. 1270. The observation of the noble Lord, Lord Cope, for which I have considerable respect, was misquoted twice in a rather important way by the noble Lord, Lord Williams of Mostyn. Again, on the third day in Committee he said this:
I emphasise 'subject to the parliamentary structure'—which is incorporated in the Bill. Indeed, we return to the point of principle of the noble Lord, Lord Cope, of whether it is to be left to a discretion which many believe has been inappropriately exercised". —(col. 60.)
And at col. 62 he said:
I hope that I have dealt with the main themes here. I do not apologise for repeating the fact that I think the noble Lord, Lord Cope, identified the position correctly. Is this to be a matter for the courts' discretion or for parliamentary structure?".
In referring to the judge's discretion, that was quite incorrect, as I shall indicate when referring to the judgment of my noble and learned friend, the former Chief Justice, Lord Lane, who is happily sitting on my right.
I suppose in some respects one must not be too censorious about that error because it was somewhat supported by the observations of the noble Lord, Lord Lester of Hemet Hill. At col. 47 he said:
"Pace the noble and learned Lord, Lord Ackner—with great respect and friendship—Clause 40 does not remove judicial discretion. It builds on Section 2. Its provisions seek to structure, guide and narrow the discretion exercised by a judge in deciding when a victim may be questioned about her sexual behaviour".
Comment was made when that was before your Lordships about the absence of guidance, so it was said, which was given in relation to the clause in the Sexual Offences (Amendment) Act 1976, which imposes restrictions on evidence at trials for rape. Section 2(1) provides quite simply as follows:
If at a trial any person is for the time being being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant".
Subsection (2) provides the guidance:
The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made to him in the absence of the jury by or on behalf of a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair"—
I stress those words—
to that defendant to refuse to allow the evidence to be adduced or the question to be asked".
The matter came before the Court of Appeal, Criminal Division, in 1982 in the case of Viola. I need not bother your Lordships with the special facts of that case, but I go straight to the judgment of my noble and learned friend the Lord Chief Justice. This clear guidance was given on the point on which I sought to criticise the Minister, at page 128:
It is, we think, apparent from those words—
from Section 2 that I quoted—
without more, that the first question which the judge must ask himself is this: Are the questions proposed to be put relevant according to the normal common law rules of evidence and relevant to the case as it is being put?…The second matter that the judge must consider is this. If the questions are relevant, then whether they should be allowed or not will of course depend upon the terms of section 2, which limits admissibility of relevant evidence".
Then the noble and learned Lord refers to the case of Lawrence, in which Lord Justice May said:
The important part of the statute which I think needs construction are the words 'if and only if he [the judge] is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked', and, in my judgment, before a judge is satisfied or may be said to be satisfied that to refuse to allow a particular question or a series of questions to be asked in cross-examination would be unfair to a defendant he must take the view that it is more likely than not that the particular question or line of cross-examination, if allowed, might reasonably lead the jury properly directed in the summing up, to take a different view of the complainant's evidence from that which they might take if the question or series of questions was or were not allowed".
Then the Lord Chief Justice refers to a case in the Court of Appeal Criminal Division—Mills (Leroy) (1979). The decision was given by Lord Justice Roskill as he then was, and his Lordship said this:
This section has not as yet. as far as this Court is aware, been considered by this Court…we pointed out to Mr. Hunt in the course of argument, [that this is] essentially a matter for the exercise of discretion by the trial judge within the framework of the Act, bearing in mind that statutory provision is designed to secure protection for complainants. The learned judge here exercised his discretion after having had that decision of May J. quoted to him. Mr Hunt found himself unable to say that this was not a matter for the exercise of the learned judge's discretion, but argued that this Court should substitute its own discretion for that of the learned judge…With respect, it would be entirely wrong for us to do so".
There, the suggestion that it was at the discretion of the judge to decide, once satisfied that the evidence or questions were relevant, to allow or disallow them was fairly stated. However, the Lord Chief Justice, giving the judgment of the court in Viola, continued:
We would further like to say this about the judgment in MILLS, and say it with the greatest possible deference to that Court. It has been agreed on all hands, not only by the appellant and by the Crown but also by Mr. Green who has assisted us as amicus curiae, that it is wrong to speak of a judge's 'discretion' in this context. The judge has to make a judgment as to whether he is satisfied or not in the terms of section 2. But once having reached his judgment on the particular facts, he has no discretion. If he comes to the conclusion that he is satisfied it would be unfair to exclude the evidence, then the evidence has to be admitted and the questions have to be allowed".
Having said that, when one considers the purposes that lay behind the passing of this Act as expounded by Roskill L. J., it is clear that it was aimed primarily at protecting claimants from cross-examination as to credit, from questions which went merely to credit and no more".
This is the part that I want to stress:
if the proposed questions merely seek to establish that the complainant has had sexual experience with other men to whom she was not married, so as to suggest for that reason she ought not to be believed under oath, the judge will exclude the evidence. In the present climate of opinion the jury is unlikely to be influenced by such considerations, nor should it be influenced. In other words questions of this sort going simply to credit will seldom be allowed. That is borne out by the cases to which we have been referred…On the other hand, if the questions are relevant to the issue in a trial in light of the way that the case is being run, for instance relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted, because to exclude a relevant question on an issue in the trial as the trial is being run will usually mean that a jury are being prevented from hearing something which, if they did hear it, might cause them to change their minds about the evidence given by the complainant".
Almost finally, the Lord Chief Justice said:
Inevitably in this situation, as in so many similar situations in the law, there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case. On one hand evidence of sexual promiscuity may be so strong or so closely contemporaneous in time to the event in issue as to come near to, or indeed to reach, the border between mere credit and an issue in the case…The second matter is, is this Court entitled to differ from the conclusions of the learned judge? As already pointed out, this is the exercise of judgment by the judge, not an exercise of his discretion. This Court is in many respects in as good a position as the judge to reach a conclusion".
And it did, and it departed from the view mentioned below.
The only other reference that I want to make is to the later case of Brown, in which their Lordships followed Viola and concluded their judgment this way:
The question was whether, on the facts of a particular case, the complainant's attitude to sexual relations could be material upon which a jury could reasonably rely to conclude that the complainant might indeed have consented to sexual intercourse on the material occasion, despite her evidence to the contrary".
I stress the next words:
It was a question of degree in every case".
Then, the final paragraph of the judgment concludes that,
although we have not found it easy to reach a decision on this appeal, in the end we do not think that the 'evidence of sexual promiscuity' of the complainant was 'so strong or so closely contemporaneous in time to the event in issue as to … reach the border between mere credit and an issue in the case'".
Your Lordships will have seen that there are two factors relative to the evidence of promiscuity which can make the questions admissible: the evidence must be so strong, or so closely contemporaneous.
§ In Clause 40, which seeks to replace the statute to which I have made detailed reference, there is no provision for allowing in evidence of past promiscuity because of its strength. It is only allowed in if there is closely contemporaneous evidence. In so far as it is unfair to refuse to allow questions in regard to previous sexual activity where that evidence is particularly strong, I should explain that the defendant is then obliged to subject himself to a situation which is unfair—the very words of the 1975 statute. It is unfair because of the strength of that evidence; it is not a question of discretion. Once you find that it is unfair as matters stand at present, the questions must be allowed.16
§ However, there is no provision for that in Clause 40 as now drafted. For that reason, I suggest that it cannot possibly, with fairness, take the place of the 1925 statute. I beg to move.
§ 3.30 p.m.
§ Baroness Mallalieu
My Lords, I should like to speak to Amendment No. 58, which has been grouped with the amendments of the noble and learned Lord. To stop a judge who is presiding over a trial of a man accused of rape from allowing questions to be asked or evidence to be given which he, the trial judge, considers to be relevant, potentially probative and necessary in the interest of justice to ensure a fair trail of the accused, is, in the moderate language of the noble and learned Lord the Lord Chief Justice (speaking on the amendment in Committee in this House on 8th February),not a recipe for the good administration of justice". —[Official Report, 8/2/99; col. 55.]In my less measured language, this is total lunacy; indeed, this is the very stuff of which false convictions are made. In relation to Clause 40 we are, I believe, in the very greatest danger of passing legislation through this House to deal with a situation which in fact no long exists, because the pendulum has already swung to correct an imbalance that certainly used to exist. I do not believe that I am being complacent. The days of insensitive judicial comment and the permitting of unjustified cross-examination, which was irrelevant, insulting and gratuitously intrusive, are, in my personal experience, ones which relate to a bygone age. Things have moved on a great deal.
The noble and learned Lord referred to the case of Viola, which set the framework of restrictions for a judge, and what he could permit to be asked, as long ago as 1982. But a great deal has happened in the courts, and elsewhere, since then. Today, only judges who have been specially chosen, nominated to try cases of this nature, are permitted to do so. Public attitudes have undergone a mammoth change, too. Rape is now rightly seen as a serious offence of violence and not a joke. Those convicted of rape now face long sentences and a lifetime on the sex offenders' register.
In my experience, judges are acutely aware of the need to protect the complainant as he gives her evidence. No judge trying such a case today can be unaware of the personal consequences for him or her of a tactless or inappropriate observation from the Bench or a failure to protect the witness from oppressive and unnecessary questioning. A media field day would result and the telephone from the Lord Chancellor's Department would be incandescent.
However, it is not just judges who have changed; indeed, juries have also changed. When the charge is read out at the start of a trial and jurors hear that the defendant is accused of rape, the looks that are directed at the dock before any evidence is heard are the most eloquent testimony as to how far public attitudes have shifted. An alleged sex offender starts his trial before a word of evidence is given with the presumption of guilt to overcome.
17 When the Minister replies, he need not repeat his speeches given earlier in the course of the proceedings on the Bill on the horrors of rape, the right of a woman to say no at any time, or the importance of getting women to come forward and complain. Those arguments have been universally accepted for a long time and we are all agreed about them. Despite that fact, and in some ways because of it, the acquittal rates in rape cases are high. There are many theories about the reasons for that. I suspect that some cases which should have been dropped well before trial because the evidence is not sufficiently strong to sustain a conviction are, nonetheless, pursued because the prosecuting authorities fear criticism if they do not allow them to run—a criticism that they have not sufficiently backed the victims.
Serious rape cases are too often prosecuted today by very junior counsel instructed by the Crown Prosecution Service. The knowledge of jurors that a rape conviction, whatever its nature and circumstances, must result in a long prison sentence, may make them unwilling to stigmatise as rape episodes, especially those between parties who know one another, which, although they are technically rapes in law, seem to jurors more akin to incidents of bad manners, drunken misconduct or youthful misjudgment. It should not be forgotten that a significant proportion of false allegations are also made. Cases of this type usually mean that the evidence consists of one person's word against that of another, with no witnesses. The decision as to who is telling the truth in these cases is often almost impossible to make. However, Clause 40 proposes that jurors should in future be given less information, not more, to enable them to reach that decision. It is proposed—and we should not forget this—to keep from them even more of the background to the case which may enable them to reach the right decision than they are now allowed to hear.
In Committee, I put to the noble Lord, Lord Williams of Mostyn, a hypothetical illustration of a case where, under his proposals, no evidence would be allowed and no questioning permitted about matters which I ventured to suggest most right thinking people would consider necessary to reach the right verdict. In the amendments which follow in the next group, I am grateful that the noble Lord has responded positively in that respect. The Ministers's amendment, Amendment No. 57, has been framed to permit questioning about other incidents which are so similar that they cannot reasonably be explained as coincidence.
I say I am grateful to him for those changes which I anticipate he is about to propose. But I find the following difficulty. In accepting, as he has, that the clause as drafted, in some circumstances which had not been foreseen when this Bill first came before the House, would prevent questioning and evidence which is necessary to ensure a fair trial, he makes the argument for Amendment No. 58, which I propose, with great eloquence himself. Neither those who drafted this Bill originally, nor noble Lords, nor those in the other place who will examine this Bill later, can possibly anticipate 18 every factual situation which may arise, in particular because human behaviour is infinite in its variety. We cannot anticipate every eventuality.
The trial judge must retain a degree of discretion over each aspect of the evidence to ensure a fair trial when the unforeseen arises. Clause 40, even as the noble Lord proposes to amend it, makes—I am sorry to say this— a dog's dinner of the law in this area. It creates complications and uncertainty for prosecution, defence and for the judges. We should surely be trying to make new legislation both simple and certain, and Clause 40 does neither. If the Minister is still insisting on Clause 40 in some form, will he at least indicate that he will look at Amendment No. 58 and, if necessary, take it away and return with a provision, strengthened, if he likes, with the words, "in exceptional circumstances", which the Court of Appeal has just conveniently defined in relation to other legislation? But I ask him not to let this House, however well intentioned, pass legislation which may well raise the conviction rates in these cases, but do so by adding people who are not in fact guilty to the prison population.
§ Lord Campbell of Alloway
My Lords, I support the noble Baroness in her Amendment No. 58 for all the reasons which she has given and, if I may be allowed to do so without presumption, congratulate her on the way in which she put forward her case. As regards the amendments to Clause 40 of the noble and learned Lord, Lord Ackner, I support them for the way in which they were presented. As the noble and learned Lord said, contemporaneity is no substitute for strength of evidence. That carries forward into the reasoning of Amendment No. 58 in the name of the noble Baroness. It is absolutely crucial that there should be sufficient information and the right information to enable the jury to make the right decision. I accept, if I may, the noble Baroness's criticism that she so cogently presented of Amendment No. 57. That was well conceived and I hope that the noble Lord, Lord Williams of Mostyn, can take it into account in the spirit in which it was tendered.
§ 3.45 p.m.
§ Lord Thomas of Gresford
My Lords, my Amendments Nos. 59 to 61, which are grouped with the one we are discussing, are designed to throw out the whole of the suggested machinery in Clause 40 and subsequent clauses, as put forward by the Government. The issue is quite clear: should the judge in court have a discretion to admit cross-examination of a complainant on her sexual history in every conceivable and possible circumstance, and in every eventuality—as the noble Baroness Lady Mallalieu, put it; that is the purport of her amendment—that may arise in any particular case? Or, on the other hand, should there be a statutory strait-jacket, as I would call it—the noble Lord, Lord Williams, referred to it as a parliamentary structure—which guides and constrains the judge in the exercise of his decision whether or not to permit such cross-examination?
The noble and learned Lord, Lord Ackner, has already quoted Section 2 of the Sexual Offences (Amendment) Act 1976 and set out the test that a judge applies 19 currently. He will permit such cross-examination of the sexual history of a complainant only if he is satisfied that it would be unfair to the defendant to refuse to allow the evidence to be adduced or the question to be asked. Miss Aileen McColgan in Volume 16 of the Oxford Journal of Legal Studies has helpfully analysed the most frequent categories in which previous sexual history is now admitted. I have only to refer to those categories for your Lordships to realise the nature of the circumstances which can arise in different cases. For example, sexual history may be admitted to rebut good sexual history called by the Crown if the prosecution suggests that the complainant is a woman of little or no previous sexual experience. In such circumstances the defendant may be permitted to adduce evidence to rebut that. Secondly, it may be admitted to show that the complainant has behaved in earlier sexual encounters in a way very similar to the facts of the current allegation, and that she has made previous false allegations of a similar nature. Thirdly, it may be admitted to show bias or malice borne out of previous sexual conduct on her behalf. Fourthly, it may be admitted to attribute physical evidence to another man, such as the presence of disease or presence of semen which may explain those particular pieces of evidence. Finally, it may be admitted to give support to the defendant's belief that she was consenting. I referred to that when I spoke on this amendment in Committee.
The report, Speaking Up for Justice, of June 1998, on which this Bill is based, stated that there is evidence that the practice of the courts in interpreting Section 2 is widely variable. The odd thing is that we have never heard precisely what that evidence is. It is contrary to the experience of practitioners such as the noble Baroness, Lady Mallalieu, myself, and judges who have addressed your Lordships in relation to this Bill, that there is a widely variable practice. It is difficult to obtain leave, if one is defending in a rape case, for the sexual history of the complainant to be subject to cross-examination.
It was suggested in Speaking Up for Justice that Scottish or New South Wales models should be followed. Indeed the noble Lord, Lord Williams of Mostyn, in speaking in reply to this amendment in Committee, also said that regard had been had to Canadian, New South Wales and Scottish models. The fact of the matter is that experience in those jurisdictions has not been satisfactory because the legislative frameworks that have been imposed have not been successful. In Scotland the rules to restrict sexual history were enacted in 1986 and were consolidated in Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. That prevents evidence being called except to rebut prosecution evidence of good sexual character, or for sex on the same occasion as the charge, or anything it would be contrary to the interests of justice to exclude. That discretion was left in Scotland and the Scottish Office report, Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials stated that the statutory framework that had been enacted made little difference to the admission of such 20 evidence. Indeed in Scotland 85 per cent, of applications for the admission of such evidence have been successful.
In New South Wales in 1981 a rape shield provision was added to the Crimes Act by Section 409B, and statutory exceptions of a similar nature were added, but there was no general discretion left to the judge at trial. It is true that the conviction rate went up and that only 29 per cent. of claimants were cross-examined under these provisions. However, as has been pointed out by Miss Vera Baird in a pamphlet that she has produced entitled, Rape in Court—I am extremely grateful for her research in this matter:there is mounting criticism that the provision leaves no discretion at all to a trial judge to enable him to admit evidence outside the specified categories in a case in which it might be fair to do so … no legislature has the prescience to foresee every eventuality".That is the exact point made by the noble Baroness, Lady Mallalieu, a few moments ago. The leaflet continues:The Standing Committee of the state Attorney General drafted a model penal code which was published with explanatory notes in November 1996. They now propose"—this is New South Wales—to reintroduce a judicial discretion which will allow the introduction of evidence eiusdem generis with the statutory categories if otherwise there would not be a fair trial".The statutory strait-jacket has been attempted in New South Wales but has failed. A general discretion to meet all eventualities will now be introduced.
My noble friend Lord Lester of Herne Hill referred to Canada in Committee. Canada introduced a rape-shield provision in 1985 which permitted no residual discretion outside the fixed categories set out in that legislation. In the case of Seaboyer, that was held to violate Section 7 of the Canadian Charter of Rights and Freedoms and it was struck down as being inconsistent with that part of the Canadian Charter. In his judgment, Mr. Justice McLachlin quoted Professor Vivian Berger's article, Man's Trial, Woman's tribulation, and said:The problem is to chart a course between inflexible legislative rules and wholly untrammelled judicial discretion: The former threatens the rights of defendants; the latter may ignore the needs of complainants".So in Canada, this statutory strait-jacket having been struck down as inconsistent with the Canadian Charter, fresh legislation was introduced which not only followed the principles set out by Mr. Justice McLachlin in that case, where he offered a model of such legislation, but also introduced a new procedure whereby if there is such an application for cross-examination as to sexual history there follows a private hearing—which the complainant is not required to attend if she does not wish to do so—and the whole matter is then examined in private. The judge gives a reasoned decision as to why that history should be admitted, if he so decides, and then the matter is heard further in public.
It may be that something along those lines would be a way forward, but the way in which this clause is now drafted does not admit of a general judicial discretion. Rather like the evangelist who starts by persuading you that you are mired in sin, it is no good the Government 21 attacking judges in order to justify introducing a strait-jacket of this kind. That only undermines public confidence in the judiciary and does nothing practical to assist in the resolution of the problem. And it is a difficult problem which faces the courts.
For those reasons, I fully support the amendment of the noble and learned Lord, Lord Ackner, the amendment of the noble Baroness, Lady Mallalieu, and my own amendments.
My Lords, it seems to me that if Clause 40 is to survive at all, the case for either the amendment of the noble and learned Lord, Lord Ackner, or the noble Baroness, Lady Mallalieu, is over-whelming. I can give my reasons for saying that very simply and without, your Lordships will be pleased to hear, any citation from cases.
Subsection (2) of Clause 40 provides that evidence or cross-examination of this kind can be allowed only where the court is satisfied of two things—and it has to be satisfied of both of them. One is that to refuse to allow such evidence might have the result of rendering unsafe the conclusion of the jury or the court. So the first gateway is, "If I exclude this evidence, may it render a decision against the defendant unsafe?" On top of that, there is then a second requirement; namely, that one fulfils the requirements of subsection (3)—or subsection (3) as sought to be amended by the noble Lord, Lord Williams of Mostyn—or subsection (5).
There are two gateways. Where there are two gateways, by definition one may get through the first but not the second. So one could have a situation where the judge says to the defendant, "Yes, I am quite satisfied that unless you are allowed to adduce this evidence or to ask these questions there is a risk that if you are convicted that conclusion may be unsafe. But, I am sorry, you do not get through one of the other gateways and therefore you cannot ask the questions or give the evidence. "There the judge is faced with saying to the defendant, "You need to ask these questions to have a safe and fair trial but I am not allowed to let you ask them." What does a judge do in such circumstances? Does he allow the case to go on, having told the defendant that the way it is being conducted will probably render his conviction unsafe? Or does he say, "I am not allowed to let these questions be asked, but unless these questions are asked there cannot be a fair trial, and therefore the trial must stop"?
An Act of Parliament which states that one may not ask questions even though the judge has decided that unless one asks these questions there cannot be a fair trial is the most amazing legislative concept I have ever heard.
§ 4 p.m.
§ Lord Lester of Herne Hill
My Lords, I think I am the first person to say anything in favour of Clause 40 and against this group of amendments. I am conscious that I spoke in Committee and I shall try not to repeat what I said. It would be unfortunate if there were to be a polarisation of attitudes between, on the one hand, judges, with great experience of the criminal trial 22 process and rape cases, and criminal law advocates, and the Government and their lay supporters, including many women and men, on the other. I do not believe that there needs to be that degree of polarisation.
In many ways the Government have not done themselves a great favour in the way in which they have described, or failed to describe, the background to what is now Clause 40. As I understand the position—the Minister will, I hope, correct me if I am wrong—the Government have modelled Clause 40 on precisely the Canadian compromise referred to by my noble friend Lord Thomas of Gresford. As my noble friend indicated, in Canada a very rigid and extreme rape-shield law was introduced which totally fettered the court's power to strike a fair balance between the rights of the complainant and the rights of the accused and to ensure a fair trial. That law was struck down by the Supreme Court of Canada as being unduly rigid and depriving the accused of the right to a fair trial. Very sensibly, all the political parties in Canada then got together with judges from the Supreme Court and over several years fashioned a fair compromise respecting the dignity, privacy and equality of treatment rights of complainants, and the paramount right of the accused to a fair trial.
That is what Clause 40 does. Leaving aside the question about a private procedure to deal with this category of sexual offence in a different kind of way, Clause 40 seeks to limit the discretion, or judgment, or both, of the courts in admitting evidence of the complainant's previous sexual history as evidence of consent in most cases. It seems to me that in most cases evidence of previous sexual promiscuity is irrelevant, or should be irrelevant, and is inadmissible or should be inadmissible in relation to the issue of consent as distinct from honest belief in consent.
I know that that view is not taken by everyone. Having listened to the noble and learned Lord, Lord Ackner, and to my noble friend Lord Thomas of Gresford, I do not think that they agree with my remarks. I think they believe there is a wider category of cases in which evidence of the complainant's previous sexual history is relevant, ought to be able to be admitted, and is not greatly prejudicial to the dignity and other rights of the complainant. So there is a disagreement in principle. With respect, it does not do to cite existing case-law on that subject if the disagreement is within the attitudes displayed in that case-law on the one hand and what the Government seek to do in Clause 40 on the other, which is indeed to change the unsatisfactory status quo.
If I thought that the way in which the Government were going about the matter was the old Canadian or New South Wales way, I should join my noble and learned friend and others on all sides of the House in opposing the amendment. However, I believe that Clause 40 is clear and structured and strikes a fair balance. At any rate, it does so if your Lordships accept Government Amendments Nos. 56 and 57, which we shall debate shortly, since Amendment No. 56 would remove the somewhat arbitrary reference to the 24-hour limit. I greatly welcome the fact that the Government are now more flexible. The amendment seeks to reach a compromise following the "Romeo and Juliet" example 23 given last time by the noble Baroness, Lady Mallalieu. Like the noble Baroness, I greatly welcome what the Government are doing in that regard.
As I said previously, I do not support a continuation of the present unsatisfactory status quo. As a matter of principle and practice, I believe that women have been subject for too long in some cases to a whole slew of irrelevant and inappropriate questions posed by the defence about their past sexual practices, past sexual partners and past medical history. I gave some examples in Committee where senior practitioners of great experience had made clear that, in their determination to do what they could for the accused, they would seek to damnify the character of the complainant, and often succeeded in doing so. Admittedly, those examples were based on a limited but important sample of practitioners who had been interviewed by a professor.
Such questions play on prejudices and myths about what is good and bad behaviour for women. To allow such questions in evidence disregards a woman's right to a fair trial, her right to privacy and dignity and her right to personal autonomy in making her own decisions about her sexual activities. That is a very high price to pay to defend the rights of the accused. I do not believe that it is a necessary price, as the recent Canadian reforms indicate. To ensure the fairness of a trial, we are right to prohibit evidence of an accused's past convictions from going before a jury. That is only fair since such evidence would be highly prejudicial. But surely the same logic should apply to the admission of sexual history evidence. In most rape cases, sexual history evidence has little probative value, and certainly not enough to overcome its highly prejudicial effect upon the alleged victim's rights. For those reasons, I support the Government's plan to introduce statutory guidelines placing the court's discretion within narrower limits. I do not go so far as to support the position taken by Women Against Rape. I do not support an absolute bar on the admissibility of sexual history evidence. I accept that in limited cases sexual history evidence can be relevant. Its admission should not, however, be the exception rather than the rule; hence the need for statutory guidelines.
During previous debates on this Bill we have heard much about consent. But consent to engage in sexual relations in the past does not give a blank cheque for consent to engage in sexual relations in the future. If that were so, the noble and learned Lord, Lord Lane, when Lord Chief Justice, would never have recognised that rape can occur within a marriage. That was a great landmark decision.
Consent, by its very nature, is to a person, not to a circumstance. As the Heilbron Committee pointed out as long ago as 1975, evidence of a woman's sexual experiences with partners of her own choice is not indicative of a general willingness to consent.
For those reasons, and for the reasons given by the Supreme Court of Canada only a couple of weeks ago—in a landmark decision in Regina v. Ewanchuk, the Supreme Court pointed out in what has become known as the "no means no" case that the honesty of a belief cannot be seen in a vacuum in cases of this kind—an 24 honest but mistaken belief in consent must be genuine. A man cannot wilfully or recklessly disregard anything that was said or done which would lead an ordinary person to believe that a woman was giving her consent to engage in sexual relations. The obvious example is if the woman says no. How can a man have an honest but mistaken belief in consent if the woman says no? Nor can there be consent if a woman's actions show that she is being forced to give her consent, or that she fears for her safety or is being pressured to do something that she does not want to do.
Past sexual history may be a factor, but it is one of many, and its admission should be weighed against any indication that such evidence is being sought to impugn the woman's credibility or to jeopardise the fairness of the trial to all concerned. These are, rightly, hurdles which Clause 40 seeks to establish as part of our law. For those reasons, I oppose the amendments and support Clause 40 as it stands.
§ Lord Ackner
My Lords, before the noble Lord sits down, I wonder whether he will tell me whether he disagrees with two propositions, both of which were mentioned in Committee. The first is from Viola. I quote:as in so many similar situations in the law, there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case. On one hand evidence of sexual promiscuity may be so strong or so closely contemporaneous in time to the event in issue as to come near to, or indeed to reach, the border between mere credit and an issue in the case".Is that accepted by the noble Lord as a perfectly valid proposition? If not, perhaps he will tell the House why.
§ Lord Lester of Herne Hill
My Lords, of course I accept that proposition, as do the Government in their approach in Clause 40. That is why they would limit evidence of previous sexual history, initially within the 24-hour rule, and now replaced by something less rigid but still placing the evidence within very direct contact with the issue in the case.
§ Lord Hacking
My Lords, although I have had a keen interest in criminal justice since I first joined your Lordships' House over 25 years ago, I have hitherto not had the opportunity, alas, to take part in the debates on the Bill. That is because I have not had the time to give it the attention that it rightly deserves. I therefore did not intend to participate in the debate on Clause 40 until it had commenced and I had heard the argument.
I support the Government in the introduction of Clause 40 into the Bill. There have been a number of cases, particularly when the accused has represented himself, in which a complainant has been harassed, humiliated and embarrassed to a quite unacceptable degree in rape trials. It is possible that on those occasions the trial judge did not exercise the type of judicial decision making that he should and that he did not sufficiently restrain the questions. Nevertheless, those events have taken place. Therefore, I believe that the Government are entirely right and I support my noble friend on the introduction of Clause 40 into the Bill.
25 However, thereafter it is important to ascertain whether there is sufficient judicial discretion. I entirely agree with the noble Lord, Lord Thomas of Gresford. I believe he said that the Bill as drafted, even with Amendments Nos. 56 and 57 tabled my noble friend Lord Williams, still did not admit a general judicial discretion. The point was also made by the noble Viscount, Lord Bledisloe.
The Minister will remember the debates on the Crime (Sentences) Bill. We joined together as strongly as we could in opposing the measures of mandatory sentencing in that Bill, precisely because it did not give enough judicial discretion. My noble friend will remember that we were victorious. Voting against the government of the day, we managed to have inserted into the Bill sufficient judicial discretion over mandatory sentencing.
Therefore, we must consider the amendments introduced by my noble friend, with the encouragement of my noble friend Lady Mallalieu, in Amendments Nos. 56 and 57. Amendment No. 57 puts the introduction of the evidence into a tight compass. It must beso similar to any sexual behaviour of the complainant—that is the first restraint—took place at or about the same time—that is the second restraint; and it must be of such similarity that it,cannot reasonably be explained as a coincidence".My noble friend practised much in the English courts when he was a member of the Bar, both as a junior and as a Queen's Counsel. He is wholly familiar with the criminal trial and with cases involving sexual allegations. I ask him therefore to consider how he would make a successful submission on behalf of a client who wished to use the extension of discretion that is set out or who wished to ask the court to use the discretion set out in Amendment No. 57. If my noble friend applies his mind to the conduct of the trial, he will see the difficulties that he will face in advancing the argument that evidence may be introduced in order to ensure a fair trial.
I hope that I shall be forgiven for not participating earlier in debates on the Bill. For that reason, I ask my noble friend to have another look at Amendment No. 57, together with Amendment No. 58 proposed by my noble friend Lady Mallalieu and to adopt the latter. It seems to me that Amendment No. 58 gives sufficient judicial discretion. That is what we seek: a fair trial with a judge who has sufficient room to make a fair and right decision on whether to admit evidence.
§ 4.15 p.m.
§ Baroness Lockwood
My Lords, the debate so far has concentrated on the views of judges and lawyers. I believe that I am the first non-lawyer to take part in the discussion. I do not wish to consider the issue from the point of view of whether judges have sufficient discretion to enable them to carry through a fair trial. I wish to consider it from the point of view of women. It is women who are most likely to be the victims of rape.
26 There is no way in which a woman who has suffered from rape can be compensated. She can get nothing out of the trial of the defendant. She has been raped and no matter what happens, that experience remains with her and will remain with her for the rest of her life. My noble friend Lady Mallalieu said that there was no need for the Minister to talk any more about the abhorrence we all have of rape and the suffering which some women have experienced in the past when they have reported it and have taken a case through to prosecution. We all know that that should not now happen. Therefore, the woman is not likely to be subjected to that distress. My noble friend said that we were all agreed about it.
However, there is still much apprehension and disagreement, even about the Bill as at present drafted. Some 200 women's organisations have made representations to the Home Secretary about the Bill because it did not go far enough from their point of view. They wanted a woman's previous sexual experience to be completely excluded from the Bill. So there are two sides to the argument.
Certainly, women who have been victims of rape do not want to be put on trial or perceived to be put on trial for having been a victim and to have their past sexual experience taken into account. It is not only a question of whether it is good administration of the law, as the noble and learned Lord the Lord Chief Justice said earlier; it is also a question of whether it is perceived to be a good law. If women do not perceive it to be a good law and if they feel that it does not give them sufficient protection, they will not use it. No matter how we might argue about legal niceties in this House, women will not press their case so that it can be brought to trial.
I believe that we must be careful about the argument of a judge's discretion. We must also consider it from the point of view of the woman who is or has been a victim of such a crime. We want a law that will protect women against rapists. That is the whole purpose of the law: to provide protection against such crimes. I suggest that the import of the amendments to be moved by my noble friend—whether or not noble Lords agree that he has the wording just right—is as far as we can go if we are to provide justice for both women and the very few people who are brought before the court as a result of unfounded allegations of rape being made against them.
§ Lord Goodhart
My Lords, this is the first occasion on which I have spoken in the debates on this Bill. I do so now with some reluctance because I have not been able to attend as many of the previous debates as I would have wished. Part II of the Bill has given rise to very important divisions of opinion on both the Government Benches and these Benches. That was obvious in the debate at Committee stage on the cross-examination of complainants by the accused in rape cases. Had I then been present I would have been in complete agreement with what was said by my noble friends Lord Lester of Herne Hill and Lord Russell.
As to the issues covered by these amendments, there has been a similar division of opinion. I agree that the evidence of the previous sexual history of a complainant 27 should not be admitted unless it is relevant. I also agree that evidence that a complainant has had sex with other men, even promiscuous sex, is not in itself relevant.
I also agree, however, that evidence which can reasonably be regarded as relevant to the defence must be admitted even if it involves the complainant's sexual conduct with other people. Any defendant must be entitled to rely on all relevant evidence that may help his case if miscarriages of justice are not to occur. That is particularly true in a rape case, because a wrongful conviction for such an offence will have consequences that are even more devastating than wrongful convictions for other types of crime. The noble Baroness, Lady Lockwood, has just said—I am in entire agreement with her—that nothing in a trial can provide adequate compensation for a complainant who has been raped. But equally, although in an entirely different way, I believe that there can be no adequate compensation for anybody who has served a sentence of imprisonment as a result of a wrongful conviction for rape. I am therefore unwilling to support Clause 40 in its present form.
There is, however, one matter that concerns me: the one-sided nature of leave to consider evidence of the sexual history of the complainant under the present law. Frankly, it appears to me to be only fair that if leave is given to cross-examine a complainant on her sexual history the defendant's own sexual history should become open to investigation if that is relevant. There is a long-standing principle that if a defendant attacks the character of a prosecution witness his own previous record becomes admissible.
It was also held in Hudson's case in, I believe, 1943 that to raise a defence of consent was not ipso facto an attack on the character of the complainant. I accept that as a correct decision and I do not seek in any way to change that rule. But I find it unacceptable that a defendant should be barred from raising the sexual history of the complainant if it is relevant. I find it equally unacceptable and unfair that a defendant with a long history of sex offences can go into the history of the complainant's sexual relationships with other men without having to disclose his own record to the jury. Fairness demands that leave to investigate the previous sexual history of the complainant with other people should make it possible to open up the previous sexual history of the defendant where that can be regarded as relevant. I believe that that would discourage applications for leave to go into the sexual history of the complainant unless the results of that investigation were thought likely to be persuasive.
I hope, therefore, that the Government will accept the amendment in the name of the noble Baroness, Lady Mallalieu. If not, I shall support that amendment or the amendment in the name of the noble and learned Lord, Lord Ackner, if that is moved. But I also hope that the Government will consider amending the Bill to allow the issue of a defendant's sexual history to be raised where leave has been given to raise the issue of the complainant's sexual history.
§ Lord Hacking
My Lords, before the noble Lord sits down perhaps I may put a question so that I understand 28 what has been said. Is the present position under the Bill that there is no right to expose the sexual history of a defendant if he asks questions of the complainant?
§ Lord Cope of Berkeley
My Lords, although I speak from the Dispatch Box on these Benches this is not a matter of party policy, any more than it is on the Liberal Democrat Benches, as has been demonstrated in the past few minutes. In what I say I express my own views on the matter.
Although it is a little premature, I welcome Amendments Nos. 56 and 57 which the Government intend to move a little later to introduce the proximity in time and similarity rules in substitution for the 24-hour provision. I was one of those who criticised the 24-hour provision in the debates at Committee stage. I am not satisfied that the new formulations will end all argument on the matter. We have heard enough in the past hour to understand that.
The noble and learned Lord, Lord Ackner, quoted my words in the earlier debate and said that in paraphrasing what I had said the Minister had misrepresented me. On 8th February I said:The underlying question before us is whether we, in Parliament, can, in framing legislation of this sort, judge better what is in the interests of justice than can the court at the time".—[Official Report, 8/2/99; col. 56.]That is a different quotation from the one read out by the noble and learned Lord, Lord Ackner, but it makes the same point.
I do not think that it was therefore unfair for the Minister (paraphrasing my words) to state the point of principle as being whether it was to be left to a discretion or was to be the subject of a parliamentary structure. But he inserted after "left to a discretion" the words "which many believe to have been inappropriately exercised". I believe that that was intended to be the opinion of the Minister rather than a quotation from me. Certainly, I did not express that view and did not wish to make that claim. Provided that the noble Lord was, by that phrase in the middle, expressing his own view—he nods to indicate that he was—I have no objection to what he said.
The question that has bothered many noble Lords who have considered this matter over the past few weeks— indeed, years—and has figured in this debate is what is and what is not relevant. The Minister said very firmly in earlier debates that sexual history was not relevant to consent. However, a letter that has attracted some recent publicity written on behalf of the Women's Unit, which I understand the noble Baroness the Leader of the House chairs, appears to take a different view, judging from the press. It suggests that sexual history could be relevant to belief in consent. I am very grateful to the noble Lord the Minister for having sent me a copy of that letter and also a long explanation of what the Women's Unit intended to say. I believe that he has sent copies to those other noble Lords who spoke in the debate in Committee and also placed a copy in the Library of the House. Therefore I shall not dwell upon it.
29 However, it makes an important difference as to whether we are talking about what is relevant to the consent of the complainant at the time or what is relevant to the accused's belief in her consent at that time. I believe, with the Minister and the noble Lord, Lord Lester, that a woman's consent is hers to give or to withhold on each occasion, regardless of her previous sexual history.
That still leaves the question, which will be an issue in many trials of this kind, as to whether or not she is telling the truth to the court about her state of mind at the time of the offence. I am concerned about the meaning of the word "consent" in Clause 40(3)(a) which says:that issue is not an issue of consent".I believe, from what has been said and from what the Minister said in his letter, that the word "consent" there does not include belief in consent. The noble Lord has been kind enough to nod in confirmation of that. I think it is extremely important that this should be said in the course of our debates, as having come from the Minister, not least in case there should be any issue on this in the future. It is also important for us to understand exactly what the Government are proposing.
I do not think that the new wording will necessarily prove to be entirely satisfactory, as I have mentioned, and it seems to me that the Law Commission was right to suggest a little while ago an amendment to Section 2 of the 1976 Act so as to modify a potential defence against a charge of rape. The key aspect of their proposal—I put it in layman's terms because I am not sure that I would get it entirely correct in legal terms— is that it should not be an offence to say that the accused believed in the victim's consent unless it was reasonable for him to believe it.
It is the opinion of the Criminal Bar Association and others—
§ 4.30 p.m.
§ Lord Ackner
My Lords, I am sorry to interrupt the noble Lord but could he tell us where the Law Commission has expressed that opinion? I ask because I was in touch with the Law Commissioner who specialises in the criminal side. In, as I recall, the 1995 discussion paper, the Law Commission took the view that the present situation was the correct one. One had to look at the behaviour of the accused subjectively, not objectively, and it was not right to consider putting in the defence that he "reasonably" believed that she was consenting. I may be entirely wrong but I did bother to check it with Mr. Silver, the commissioner dealing with this; and that is what he told me.
§ Lord Cope of Berkeley
My Lords, I certainly defer to the noble and learned Lord's legal contacts in getting these matters accurate. I am relying on the Criminal Bar Association's response to Speaking Up for Justice, in which they quoted an extract from the consultation paper of 1995 mentioned by the noble and learned Lord. That paper contained a proposal to insert the word "reasonable"; I am paraphrasing. But whether the Law 30 Commission subsequently supports that, is a matter of great importance, on which I cannot authoritatively comment, at least at this point.
However, judging by this more recent document, the Criminal Bar Association apparently believes that such a change would significantly reduce the problem in the operation of Section 2. I am also unwilling to be too dogmatic as to whether the Criminal Bar Association is correct in that view, but it is certainly an authoritative view which is worth drawing to the attention of the House. I mentioned this matter in our earlier debates and the noble Lord the Minister did not comment on it, although he did comment on it in his letter to me, which I mentioned earlier. He said, in short, that this question is being reviewed at the moment to determine whether this is a good idea and whether it would help. It seems to me that it might have been better to wait until that question had been determined before entering into changes in evidence, such as are being put forward in this Bill at this time.
In any case, the real point before us is whether we need to make any new statutory rules about sexual history at all. Most of your Lordships who have spoken in this debate—most from very great experience of the law—are concerned that if we do so in the terms suggested here in the Bill as it is proposed to amendment it, there may be miscarriages of justice in the cases that come to court. I accept that, and none of us wants to see miscarriages of justice in cases that come to court, but I am concerned also about miscarriages of justice as a result of cases not coming to court.
I believe it is true to say that quite a large number of women are deterred—not unreasonably deterred in my view—from pursuing their complaints. That in itself leads to miscarriages of justice. Like the noble Lord, Lord Lester, I do not support all the recommendations of Women Against Rape, but in its paper they make the point that only one in 200 reported rapes results in a conviction. I have no means of establishing whether that figure is entirely accurate, and perhaps it is a great exaggeration, but, even if it is, it still leaves a very worrying position.
This Bill helps in a number of ways. Earlier clauses of the Bill set out provisions to protect vulnerable witnesses through screens, video links and other arrangements which we have already discussed. The part of the Bill that we are discussing today also attempts to help. Although the Bill does not go as far as some would wish, these clauses as well as the earlier ones do help. I think they will mitigate the perceived ordeal of victims when they come to court, and if that leads to more cases being decided by the courts—either way, whether the accused is found guilty or not guilty—to me that would increase the possibility of justice being done in more cases.
It is important that we should do our best to lessen the fears of women in bringing cases, given the imbalance that has been suggested to us. That, in my judgment, is the bigger miscarriage of justice: at the 31 present time. Therefore, I am prepared to support these clauses remaining in the Bill in order to deal with that bigger miscarriage of justice.
§ Lord Williams of Mostyn
My Lords, normally your Lordships speak of the language of debate as being moderate. Therefore, it is something of a surprise to be accused of operating in total lunacy and, by the noble Lord, Lord Thomas, of having no argument apart from attacking the judges. I believe that no one could accuse me of attacking the judges. The first comment I made at the Despatch Box as a Home Office Minister was that we always hoped to give a decent regard to the opinions of the higher judiciary. I hope that I have demonstrated that. Even though I have not on every occasion agreed with every syllable pronounced, I can say that we always listen with care. If I may have corroboration of my "non-guilt", witness the amendments that I have tabled.
Plainly, this is not an easy area of the law. There has not been unanimity of approach, first, as to the nature of the problem and, secondly, as to the nature of the solution. For instance, the noble Lord, Lord Goodhart, in seeking a more equitable trial of these difficult charges—I believe that I paraphrase him fairly— proposed that if there were an inquiry into a complainant's sexual history there ought also to be a consequential and equivalent inquiry into the defendant's sexual convictions. That is not possible at present. If there is an attack on the credit of the witness, the only cross-examination allowed is under the appropriate subsection of the Criminal Evidence Act 1898. That, if it is properly analysed (which it is not always) relates to whether the defendant, if he gives evidence—and I underline that—is worthy of belief; in other words, whether he has relevant convictions of dishonesty. Sexual convictions are not always convictions in respect of dishonesty, although they could be if sexual intercourse were procured by fraud.
§ Lord Goodhart
My Lords, I am grateful to the Minister for giving way. I am aware that in order to give such evidence a change in the law would be required. I suggested it was analogy rather than directly applying the law to different circumstances.
§ 4.45 p.m.
§ Lord Williams of Mostyn
My Lords, I accept that. I referred to the noble Lord's contribution only to underline my point that it is difficult in this area to come to a conclusion of absolute certainty.
I am grateful to the noble Lord, Lord Cope, for supporting the fact that I was indicating that an approach which he had outlined in earlier debates was different from the approach I was coming to. He is right. One cannot say "parentheses", but my comment was plainly in parentheses by way of gloss on his view. He asked particularly for the definition of the phrase "an issue of consent" in Clause 40(3)(a) and (b). I nodded in 32 response to his query. It is clearly set out in Clause 41 (l)(b), which states:'issue of consent' means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented)".There, the definition is made plain beyond dispute.
The noble Lord, Lord Thomas of Gresford, commended the Canadian experience, which was further accurately amplified by the noble Lord, Lord Lester of Heme Hill. The noble Lord, Lord Thomas, in particular indicated that in his view Canada got its legislation wrong the first time. The noble Lord, Lord Lester, indicated the same and said that Canada changed it. When I said on an earlier occasion that we had paid attention to the experience of Canada, it was to the fact that there was a challenge on the human rights basis. The ruling by the Canadian Supreme Court led to the new scheme which we believe is not dissimilar to our present one. Indeed, the noble Lord, Lord Thomas, referred to the detail of the Canadian legislation about hearing applications. Our Clause 42 deals with procedure on applications under Clause 40. That scheme, as we think it appropriate to our jurisdiction, is set out in Clause 42.
The amendments are not all the same. If mishap struck and, for instance, the noble and learned Lord, Lord Ackner, succeeded in his amendment, it would not have the same effect as the amendment of the noble Baroness, Lady Mallalieu. Her amendment is quite wide, stating:Notwithstanding the other provisions of this section, the court may, on application by or on behalf of any accused",and then these important words,give leave for any evidence to be adduced or [any] question to be asked if and to the extent that the court considers such evidence or question to be necessary in the interests of justice to ensure a fair trial of the accused".In that approach, as contrasted with our approach in Clause 40, one comes to the nub of the question properly identified by the noble Lord, Lord Thomas of Gresford. He spoke of guides and constraints. We believe that the guides and constraints in this area of the law ought to be embodied in statute. There is that clear difference of approach between us.
In some circumstances, the question of relevance has been elided. Under Clause 40 as it presently stands, if an issue is relevant the questions can be asked. The clause provides that questions may be asked and evidence adduced only if subsections (3) or (5) apply. Subsection (3) relates to a relevant issue in the case, other than consent, and the 24-hour saver which has been expanded, but I will not develop that theme because it is contained in the next block of amendments. Subsection (5) relates to rebuttal evidence which is to be allowed in appropriate circumstances. Therefore, under those subsections the questions can be asked and the evidence adduced if it relates to the relevant issue.
I believe—and I hope that I am speaking carefully and courteously—that on some occasions some of the heat engendered in the debate misunderstands because of a misreading of the scheme of Clause 40. We are saying, plainly and shortly, that if subsections (3) or (5) 33 apply, the questions may be asked upon an application which is determined by the procedure in Clause 42. If the issue is not relevant, the questions cannot be asked. The question of fairness to the accused, which is the second question, arises only if the evidence in question is relevant. That is a perfectly sensible, prudent way of approaching the conduct of criminal litigation in this country.
We come to a further difference. I assert again—and I am sorry if I am annoying my noble friend Lady Mallalieu—that the fact that a woman has consented to sexual activity on an earlier occasion, with perhaps another man in different circumstances, is not relevant to whether she consented to sexual relations with the defendant on a particular occasion. That is a matter that one either accepts or does not accept. I shall not apologise either to the noble Baroness, who is my friend, or to your Lordships, who are listening so patiently to this long debate. I shall not resile from that proposition.
In certain circumstances, as the noble Lord, Lord Cope of Berkeley, correctly elicited from the letter of my noble friend Lady Jay and from what I have said on a number of occasions, a complainant's previous sexual behaviour can be relevant, but those circumstances are restricted. That is the point of Clause 40. It is not a misunderstanding; it is intended and designed to introduce restrictions and criteria which judges will be obliged to bear in mind. I go back to the phrase of the noble Lord, Lord Thomas of Gresford, "guides and constraints" and I add to it, "included in the statute".
We believe that the outcome of some previous case law was not satisfactory and that we have the right to set down the statutory guides and constraints in this Bill. That will mean the achievement of more consistency of approach and complainants will feel that they have the protection of consistency and certainty. Again, I recognise that some wish to leave it to the discretion—the noble and learned Lord, Lord Ackner, prefers to call it judgment—of the individual judges but we prefer and have reached the policy conclusion that it should be on the face of the Bill.
I flag up the rebuttal of prosecution evidence. It is plainly there. We are not driven by the belief that all complainants are true victims. We do not believe that every complainant is honest and truthful nor that every accused is guilty. We are providing a proper regime. Rebuttal of prosecution evidence has hardly been mentioned in this context but there is provision for it in the Bill.
The Bill seeks to focus on the true issues at trial, not irrelevant fishing nor suggestions that because a woman had sex on one occasion with another person, perhaps, or even the person in question, it is relevant to the issue of consent.
Under the provisions of Clause 40, in this difficult class of case we wish to focus on the true issues at trial and the determination of the facts on the occasion in question. We do not want unjust convictions nor unjust acquittals. Juries should not be allowed to make moral judgments about the complainant's character on the basis of her sexual habits, which, I repeat, are matters of her decision and personal property, and simply acquit the defendant because of it.
34 I repeat that Clause 40 allows the evidence that we have been discussing to be introduced only when it is relevant to an issue. It must relate to specific alleged instances of sexual behaviour, not vague allegations nor fishing expeditions which are looking for something with which to blacken the complainant's character. It must be of such significance that it may affect the jury's determination of the true issue in the case.
I do not believe that information about a complainant's previous sexual behaviour is directly relevant to credibility unless it directly undermines something claimed explicitly at trial. To allow otherwise derives from the basis that if a woman has had previous sexual experience, it suggests that she is untruthful or unreliable as a witness. I dispute that.
The noble Lord, Lord Hacking, referred to experience in criminal trials. We wish to be careful that evidence is not introduced on one apparent basis simply to impugn credibility. Of course a complainant's previous sexual behaviour may be relevant to credibility in some circumstances; for example, if she has made a statement about her sexual past which is not true. That is why we have not adopted the absolute position that in no circumstance may other previous sexual activity be relevant. A history of false complaints or false complaints about sexual behaviour is admissible because it goes to credibility. But it is not evidence about sexual behaviour; it is about untruthful conduct on prior occasions. There is a very clear difference.
We do not believe that a complainant's attitude to sexual relations should be admissible unless it is very closely linked in time to the offence or—and this is the basis of the government amendments—is so unlikely and so similar to the defendant's version that it could not reasonably be considered a coincidence.
It is not fair to say that we have not listened. My noble friend Lady Mallalieu developed her Capulet scenario. I found it a shade unlikely as a prospect; nevertheless, it is reasonably possible and therefore I tabled my amendments to meet her concerns. But it does not include general evidence of promiscuity or having sex with someone of a different race or age. Consent on one occasion does not mean consent on another, and consent to one man does not mean consent to a different one.
There have been unfairnesses in the trials we have been discussing. I am conscious that one does not wish to do injustice to defendants. But defendants are not the only ones who have a legitimate interest in the conduct of trials. Of course, complainants do, and there is the wider public interest in securing not only the acquittals of those who are not guilty but also the convictions of those who are.
The one thing which has emerged from this debate is that there is a difference between belief in consent and consent. There is nothing in Clause 40 which will limit evidence which truly goes to belief in consent so long as one makes the rigorous analysis which is called for in those circumstances.
35 I do not believe that the worries and concerns which have been put forward are justified. The noble Baroness said that juries will be given less background information. They will certainly be given less information which, properly analysed, is not relevant. I agree with her.
The noble and learned Lord, Lord Ackner, spoke about a history of past promiscuity if it is particularly strong. Such a history does not go to credibility and it does not go to consent, except in the limited circumstances I have described. If the defendant knew of it, it may well go to a belief in consent or not.
At the end of this debate, which has gone on a little while now, we are coming to stances which have been fully described and which will not change. I recognise and, I hope, pay honourable regard to the concerns that practitioners, judges and lawyers have had. The voice of the complainant has been heard but from only three noble Lords. I do not suggest in the slightest that those who take a contrary view to mine are contemptuous of the fears expressed by women and those who speak on their behalf. It is a case in which one can honourably disagree with others who have an honourable stance. I believe that we have got this right. If one distinguishes between consent and belief in consent and between sexual activity and credibility, then one reaches the conclusion that with Clause 40 we have it right.
§ Lord Dholakia
My Lords, before the noble Lord sits down, an important point was raised by the noble Lord, Lord Cope of Berkeley. He mentioned Women Against Rape and the issue that was raised with the Women's Unit at the Cabinet Office. Does the reply from the Women's Unit reflect consultation with women's groups or is the Government's position reflected in that particular letter from the Women's Unit?
§ Lord Williams of Mostyn
My Lords, it is both, in fact. There has been consultation. It reflects the Government's position. I did not expand on that because I have placed a copy of the letter in the Library and I have sent a copy to noble Lords who were interested on the last occasion.
We have not reached a conclusion about the amendment to the law which may or may not have been proposed as a final stance by the Law Commission. My noble friend Lady Jay was saying that previous sexual history may sometimes be relevant. I believe it is. It is relevant in the circumstances which I have described; namely, a belief in consent or the contemporaneous sexual behaviour which I described. As I said earlier, I cannot adopt the absolutist view that in no circumstance in any criminal trial in this context is the previous sexual history of the complainant not relevant. It is necessary to define what is truly relevant on sustainable grounds.
My Lords, before the noble Lord sits down, perhaps I may ask whether he accepts, on the construction of subsection (2) and the use of the word "and", that there will necessarily follow, at least in logic, situations where the judge considers that to exclude the 36 evidence would render the conclusion unsafe but, nonetheless, he is debarred from admitting it by subsection (3) or subsection (5).
§ 5 p.m.
§ Lord Ackner
My Lords, we have had a long debate so I shall be relatively short. I have listened with great care to what the Minister has said and I have not yet followed what is his criticism of the law as it stands and the law as it is being administered.
I did not interrupt him, but I expect that he will agree with the concession made by the noble Lord, Lord Lester, about the observation in the Court of Appeal in the Viola case:there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case. On one hand evidence of sexual promiscuity may be so strong"—that is something that he has not accepted—or so closely contemporaneous in time to the event in issue as to come near to, or indeed to reach, the border between mere credit and an issue in the case".Nor have I heard any criticism of the final observation made in the Brown case, which is in these simple terms:The real inquiry is whether on the facts of the particular case the complainant's attitude to sexual relations could be material upon which in these days a jury could reasonably rely to conclude that the complainant may indeed have consented to the sexual intercourse on the material occasion, despite her evidence to the contrary".In every case it is a question of degree. That does not seem to have been faulted at all. If that is the case, this long, complex amendment is totally unnecessary and it leaves potential situations in which the judge can be satisfied that it is unfair not to permit questioning and yet is obliged not to permit it. An example of that is where he takes the view that the promiscuity was so strong as fairly to be relevant to the issue of credit.
I do not propose to seek to divide the House in relation to my Amendments Nos. 55A and 55B. Unless the noble Baroness, Lady Mallalieu, divides the House on Amendment No. 58, I propose to divide the House on Amendment No. 59. In those circumstances, and bearing in mind what I have said about Amendment No. 59, I beg leave to withdraw Amendment No. 55A and I shall not move Amendment No. 55B.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 55B not moved.]
§ Lord Williams of Mostyn moved Amendment No. 56:
Page 28, line 32, leave out from ("alleged") to first ("the") in line 34 and insert—
("(i) to have taken place at or about the same time as").
§ The noble Lord said: My Lords, it was intended, when we finished the substantive discussion on the 37 previous group of amendments in the name of the noble and learned Lord, Lord Ackner, that we should break and take the Statement.
§ Lord Williams of Mostyn
My Lords, I hear noble Lords saying "Hear, hear!". I understand, of course, that my Amendment No. 56 is earlier than the amendment on which the noble and learned Lord, Lord Ackner, wishes to test the opinion of the House. I am perfectly happy to develop Amendment No. 56 because I can do it in less time than on the earlier amendment.
I hope that your Lordships will not think me discourteous, but it is an open-minded, open-hearted, full, generous concession to everything that the noble Baroness, Lady Mallalieu, urged last time. I listened with care. The noble Baroness says that she accepts it. If the noble Baroness accepts it, no further argument is needed. I beg to move.
§ Baroness Mallalieu
My Lords, I wish to place on record my gratitude to my noble friend. Although in his reply to the last group of amendments he has given no hope to those who moved them, he did the same on the previous occasion but has come back with these changes, which I fully acknowledge are wholesome and, to some extent, meet many of the concerns that I expressed. I am grateful to him.
§ Lord Cope of Berkeley
My Lords, I have already expressed my gratitude, particularly for the abolition of the 24-hour rule, and I do so again. That just about improves the Bill to the position of acceptability.
§ On Question, amendment agreed to.
§ Lord Williams of Mostyn moved Amendment No. 57:
Page 28, line 35, at end insert (", or
(ii) to have been, in any respect, so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place at or about the same time as that event that the similarity cannot reasonably be explained as a coincidence. ").
§ On Question, amendment agreed to.
§ [Amendment No. 57A not moved.]
§ Baroness Mallalieu
had given notice of her intention to move Amendment No. 58:Page 29, line 16, at end insert—("( ) Notwithstanding the other provisions of this section, the court may, on application by or on behalf of any accused, give leave for any evidence to be adduced or question to be asked if and to the extent that the court considers such evidence or question to be necessary in the interests of justice to ensure a fair trial of the accused. ").The noble Baroness said: My Lords, I do not intend to press this amendment. However, I was profoundly disappointed by the Minister's remarks. I totally agree with him that irrelevant questions should not be asked. I totally agree with him that general or vague allegations 38 of promiscuity should not be permitted. I totally agree with him that fishing expeditions are wrong and I totally agree with him that the true issues should be explored.
However, those are the considerations which judges currently apply when an application is made. Clause 40 causes me great concern because I am afraid that one will find that there are questions that a judge considers relevant to the issues which it would be unfair to the defendant to exclude, but which do not fit the narrow profiles that the clause currently contains.
That said, I do not propose to move the amendment in the hope that the Minister and those who advise him will consider the matter further, having heard expressions of concern from all sides of the House, including from some who support the principle of Clause 40, but are concerned about the complete removal of discretion in this respect.
§ [Amendment No. 58 not moved.]
§ Lord Thomas of Gresford moved Amendment No. 59:
§ Leave out Clause 40.
§ The noble Lord said: My Lords, I have heard everything that has been said by the noble Lord, Lord Williams of Mostyn, in relation to Clause 40 and I do not accept it. The issue, quite straightforwardly, is that a judicial discretion must remain in order that the court can properly deal with the particular circumstances of a case. Those circumstances are infinite and cannot be guessed by this House. Provisions of this sort, as I have indicated, have completely failed in New South Wales and they failed initially in Canada. I have listened carefully to the noble Lord to see whether there is a general judicial discretion in Clause 40. I have failed to find it. Accordingly, I seek the opinion of the House on this clause. I beg to move.
§ Lord Ackner
My Lords, I support that. I pray in aid everything that the noble Baroness, Lady Mallalieu, has just said and I need take the matter no further.
§ 5.8 p.m.
§ On Question, Whether the said amendment (No. 59) shall be agreed to?
§ Their Lordships divided: Contents, 56; Not-Contents, 143.40
|Division No. 1|
|Ackner, L. [Teller.]||Elliott of Morpeth. L.|
|Ailesbury, M.||Foley, L.|
|Allenby of Megiddo, V.||Glanusk, L.|
|Anelay of St. Johns, B.||Gray of Contin, L.|
|Beaumont of Whitley, L.||Harris of Greenwich, L.|
|Belhaven and Stenton, L.||Harrowby, E.|
|Biddulph, L.||Holderness, L.|
|Bledisloe, V.||Hutchinson of Lullington, L.|
|Campbell of Alloway, L.||Hylton-Foster, B.|
|Charteris of Amisfield, L.||Kinloss, Ly.|
|Craig of Radley, L.||Lane, L.|
|Davidson, V.||Lauderdale, E.|
|Dearing, L.||Layton, L.|
|Denham, L||Leigh, L.|
|Liverpool, E.||Saatchi, L.|
|Lyell, L.||Shannon, E.|
|McNair, L.||Simon of Glaisdale, L.|
|Mersey, V.||Tenby, V.|
|Monro of Langholm, L.||Thomas of Gresford, L. [Teller.]|
|Monson, L.||Waddington, L.|
|Moore of Wolvercote, L.||Wade of Chorlton, L.|
|Morris, L.||Weatherill, L.|
|Mountevans, L.||Westbury, L.|
|Ogmore, L.||Wigoder, L.|
|Park of Monmouth, B.||Wilberforce, L.|
|Pender, L.||Wilcox, B.|
|Renton, L.||Winchilsea and Nottingham, E.|
|Rotherwick, L.||Young, B.|
|Acton, L.||Hamwee, B.|
|Addington, L.||Hanworth, V.|
|Ahmed, L.||Hardie, L.|
|Alli, L.||Hardy of Wath, L.|
|Amos, B.||Harris of Haringey, L.|
|Archer of Sandwell, L.||Haskel, L.|
|Barnett, L.||Hayman, B.|
|Bassam of Brighton, L.||Hilton of Eggardon, B.|
|Berkeley, L.||Hogg of Cumbernauld, L.|
|Birdwood, L.||Hollis of Heigham, B.|
|Blackstone, B.||Hoyle, L.|
|Blease, L.||Hughes, L.|
|Blyth, L.||Hughes of Woodside, L.|
|Brabazon of Tara, L.||Hunt of Kings Heath, L.|
|Bragg, L.||Irvine of Lairg, L. [Lord Chancellor.]|
|Bridgeman, V.||Islwyn, L.|
|Broadbridge, L.||Janner of Braunstone, L.|
|Brookman, L.||Jeger, B.|
|Brooks of Tremorfa, L.||Kirkhill, L.|
|Burlison, L.||Lester of Herne Hill, L.|
|Calverley, L.||Lockwood, B.|
|Carlisle, E.||Lofthouse of Pontefract, L.|
|Carmichael of Kelvingrove, L.||Longford, E.|
|Carnegy of Lour, B.||Lovell-Davis, L.|
|Carter, L. [Teller.]||Ludford, B.|
|Castle of Blackburn, B.||McCarthy, L.|
|Chorley, L.||Macdonald of Tradeston, L.|
|Christopher, L.||McIntosh of Haringey, L.|
|Clarke of Hampstead, L.||[Teller.]|
|Clement-Jones, L.||Mackenzie of Framwellgate, L.|
|Clinton-Davis, L.||Maddock, B.|
|Cocks of Hartcliffe, L.||Mar and Kellie, E.|
|Colville of Culross, V.||Marlesford, L.|
|Cope of Berkeley, L.||Marsh, L.|
|Courtown, E.||Mason of Barnsley, L.|
|Currie of Marylebone, L.||Merlyn-Rees, L.|
|David, B.||Milner of Leeds, L.|
|Davies of Oldham, L.||Molloy, L.|
|Dean of Thornton-le-Fylde, B.||Monkswell, L.|
|Dholakia, L.||Montague of Oxford, L.|
|Diamond, L.||Morris of Castle Morris, L.|
|Dixon, L.||Morris of Manchester, L.|
|Donoughue, L.||Murray of Epping Forest, L.|
|Dormand of Easington, L.||Nicol, B.|
|Dubs, L.||Northesk, E.|
|Eatwell, L.||Norton, L.|
|Evans of Parkside, L.||Nunburnholme, L.|
|Evans of Watford, L.||Orme, L.|
|Falconer of Thoroton, L.||Patel, L.|
|Farrington of Ribbleton, B.||Peston, L.|
|Gilbert, L.||Plant of Highfield, L.|
|Gladwin of Clee, L.||Ponsonby of Shulbrede, L.|
|Gordon of Strathblane, L.||Prys-Davies, L.|
|Goudie, B.||Puttnam, L.|
|Gould of Potternewton, B.||Ramsay of Cartvale, B.|
|Graham of Edmonton, L.||Rea, L.|
|Grenfell, L.||Redesdale, L.|
|Hacking, L.||Rodgers of Quarry Bank, L.|
|Russell-Johnston, L.||Thomas of Walliswood, B.|
|Sainsbury of Turville, L.||Thomson of Monifieth, L.|
|Sawyer, L.||Thornton, B.|
|Sefton of Garston, L.||Tordoff, L.|
|Shepherd, L.||Tryon, L.|
|Simon, V.||Uddin, B.|
|Simon of Highbury, L.||Walker of Doncaster, L.|
|Smith of Gilmorehill, B.||Warner, L.|
|Strabolgi, L.||Wedderburn of Charlton, L.|
|Swinfen, L.||Whitty, L.|
|Symons of Vernham Dean, B.||Williams of Elvel, L.|
|Taylor of Blackburn, L.||Williams of Mostyn, L.|
|Thomas of Macclesfield, L.||Young of Old Scone, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.