§
No. 15, in page 2, line 1, leave out Clause 2 and insert:
'2.—(1) At any trial of an alleged offence of rape no evidence shall be adduced and no cross-examination permitted relating to the sexual experience or sexual disposition of the complainant with any person other than the defendant save by leave of the judge on an application made in the absence of the jury.
(2) the judge shall not give leave unless the evidence relates to—
- (a) the circumstances in which the defendant is alleged to have committed the offence which is the subject of the trial;
- (b) a rebuttal of evidence given at the trial by a witness called otherwise than by a defendant that the complainant is of good character in sexual matters;
- (c) the res gestere connected with any offence with which the defendant is charged at the trial;
- (d) previous conduct or disposition by the complainant in sexual matters which, if
1981 unchallenged, would lead to the conclusion that the complainant had acted as alleged by the defendant on the occasion when the offence was alleged to have been committed'.
§
No. 14, in page 2, line 1, leave out from '(1)' to end of line 23 on page 3 and insert:
'(1) If at a trial before the Crown Court at which a person is charged with a rape offence to which he pleads not guilty the judge is satisfied that it is irrelevant to issues arising in the trial to question the complainant regarding her sexual experience with any man other than the defendant the judge may rule that such evidence is inadmissible wholly or in part as he thinks fit.
(2) An application to exclude such evidence in subsection (1) above may be made at any stage of the trial on behalf of the prosecution or in his discretion by the trial judge during the trial.'.
§ No. 22, in page 3, leave out lines 32 to 43.
§ Mr. LeeI do not propose to be long. My hon. Friends seem to be under the impression that I am trying to talk out the Bill. I do not propose to be long-winded. [Interruption.] The more my hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) interrupts, the longer I shall be. If he wishes to subside and go and have a cup of tea, I do not mind. He can come in again later.
The real proposition here is that once again we are up against the problem of privilege in relation to these matters. We have had a rather lengthy debate on the difficulty concerning secrecy, and the matter reappears in Clause 2. One of the difficulties here is that those sponsoring the Bill are trying to limit the scope of cross-examination in relation to sexual matters. I am sorry that my hon. Friend the Member for Stoke-on-Trent, South (Mr. Ashley) is not here, because I would like to put him right on this subject.
My hon. Friend seems to be under the impression that members of the Bar who cross-examine quite often, as I have had to do, put offensive questions to witnesses on instructions. Of course, they have to amplify them to some extent because most of the time, I suppose, one of the reasons why a professional advocate is engaged in a case is that he is thought likely to be more articulate than many of the people he represents. The clause, if it is passed as drafted, 1982 will restrict quite unfairly the scope of cross-examination. Apart from the nature of the case, just as any rape accusation carries with it imputations that are adverse to the character of the defendant, so in a sense inevitably any defence to a charge of rape other than the alibi situation — "it was not me but somebody else" —involves a measure of counter-imputation against the complainant, because the defendant is saying "Sex took place. It took place outside marriage but with consent. The complainant is a liar and I am telling the truth." That, in substance, really applies to almost every case other than the alibi situation.
The trouble is that we are dealing with situations in which there is a high degree of emotion—situations made for the neurotic, the unbalanced and, indeed, the exhibitionist kind of person. It has always seemed to me unfair that there should be any restriction on cross-examination other than on matters which are totally irrelevant. There is here a point which perhaps non-lawyers may not appreciate, but let us forget rape for a moment. If in any case the defence is the line that the witnesses for the prosecution are liars and have made the story up, and if at the end of the day the defendant is convicted, the judge can and frequently does take demeanour into account in imposing sentence. In bridge terms it is 100 for the insult, if one plays it that way.
Rather more appropriate to this situation is the law of defamation. If a person pleads justification, saying "Yes, I said it. I meant it and it is true" and he is disbelieved, and if it is proved that it was not true and was not justified, he pays the penalty in aggravated damages. Why should there be any restriction—subject to relevance and matters of order—on the power of cross-examination in relation to rape rather than anything else?
§ 2.30 p.m.
§ Mr. CorbettI do not mean to be offensive or to provoke my hon. Friend, but has he actually read the Heilbron Report and seen the importance which that report—which, I agree, is not infallible—attached to the question? In paragraph 110 it is stated that
some curtailment of unnecessary cross-examination of the woman is probably one 1983 of the most important and urgent reforms now required".Has my hon. Friend read that passage?
§ Mr. LeeYes. I am aware not only of that but also of the fact, of which I do not think my hon. Friend is aware, that if as an advocate I began to ask a series of gratuitously offensive questions, quite clearly unrelated to the matters in hand, I should be called to order by any judge worthy of the name. But that is a different matter from being able to ask questions which are, in a general way, referable to the sexual character, conduct and demeanour of the complainant. If I were to start a cross-examination by asking "Mr. Snooks, did you poison your neighbour or did you poison two of your neighbours yesterday?" I should soon be called to order. I have used a frivolous example, but the House will know perfectly well what I mean.
I have the greatest respect for the hon. and learned Mrs. Justice Heilbron, but I cannot see the logic of this approach. Why, in relation to the offence of rape, should there be considerably more hampering of a defendant's rights than in other cases?
I hope that my hon. Friend accepts—I have assumed hitherto in the debate that he does—that the burden of proof and the same sorts of requirements apply to rape as to any other kind of criminal offence, namely that the defendant shall be proved beyond reasonable doubt to have committed the offence. If we accept that, however, we must accept also that there will inevitably be an element of offensiveness in the questions put in cross-examination.
§ Mr. Ashleyrose—
§ Mr. LeeEven with some restriction, it is still, I suppose, regarded as insulting—certainly by the complainant subjectively, if not by anybody else—for question to be put such as "of course, you are telling lies. You consented."
§ Mr. AshleyIs my hon. and learned Friend aware—
§ Mr. Ashley—that if he kills the Bill by a filibuster it will be one of the 1984 grossest acts of irresponsibility that I have seen in a very long time in this House? It will be gravely damaging to the interests of women, and certainly one of the most disgraceful episodes that I have ever known in the House. The House wants to listen to constructive suggestions. I hope that my hon. Friend will remember that some of us will never forget it if he talks out and kills the Bill.
§ Mr. LeeI shall answer that rather intemperate and emotive interjection in this way. If the Bill is as important as my hon. Friend believes it to be—I ask him to accept my assurance that I also regard it as important—the Government will no doubt give extra time for it, and rightly so. I ask my hon. Friend the Member for Islington, South and Finsbury to note that if there is any doubt about it I shall support him in any request to the Leader of the House for the matter to be given further time.
What I am not prepared to do or to be a party to doing is to skimp through matters relating to an offence of the gravest character, carrying with it a sentence of life imprisonment. As the hon. and learned Member for Thanet, West (Mr. Rees-Davies) has made clear, any conviction means the ruin of the person convicted of this offence. I shall not derogate from my duties as a Member of Parliament merely because it suits my hon. Friend the Member for Stoke-on-Trent, South.
Now perhaps I may return to the subject in hand. As I was saying, Mr. Deputy Speaker, in every cross-examination there is the possibility of an element of offensiveness. Practising members of the Bar —there are several of them here—have all had the distasteful experience of having to make accusations. I shall give an example which, I hope, will appeal to my hon. Friend the Member for Stoke-on-Trent, South. Members of the Bar are frequently asked to attack the character of policemen—perhaps when defending a particularly nasty and violent criminal. I do not think it would be right for me to go into personal experiences in this matter, but it is not a pleasant task when one may believe, in the privacy of one's own thoughts, that the accusations having to be made are in fact perjurious and impudent as well as insulting.
I cannot see that it is more heinous to attack a woman's sexual character and to 1985 suggest that she has been promiscuous with A, B and Z than to say to a policeman "You thumped the living daylights out of the defendant"—who perhaps has about 26 convictions for violence— "in a police cell, you made up a confession and you forged his signature." Suggestions of that sort are just as insulting and offensive to a policeman as are the sorts of suggestion put to a complainant in a rape case.
Policemen may be case-hardened and used to giving evidence in court, but do not let anyone imagine that they have no personal feelings or do not feel insulted by some of the accusations made against them. No doubt there are some tough "coppers" for whom it is all in a day's work to be accused of every crime under the sun, from witchcraft and sorcery to fraud and pinching the police canteen funds, but there are police officers who are deeply offended at suggestions put to them. This applies particularly to young officers newly on duty. They find it just as unpleasant an ordeal to have to be subjected to a barrage of offensive questions directed at their integrity as do complainants in rape cases.
It would seem to be because of the neurotic obsession with sexual matters which somehow affects some hon. Members that it is being put forward that a complainant in a rape case should receive special privileges and special treatment. I cannot see why this should be so.
A woman's propensity to sexual conduct of a particular sort may well be indicated by her conduct in relation to other persons. It may not be, and on the other hand it may be. It seems to me to be perfectly legitimate—always provided that an advocate does not go beyond his proper province—for him to put the sort of suggestion which is normally made in cases of rape. I know that my hon. Friend the Member for Stoke-on-Trent, South does not like the legal profession, but I hope he would be prepared to concede for the purposes of the debate that it is legitimate for an advocate to act in this way.
In regard to this matter, I hope that we can go on having a more reasonable debate than some of the interjections which have been made in respect of my proposals so far. Suffice it to say that there will always be, especially in criminal 1986 cases, bitter accusation and counteraccusation, and someone may well be mortified by it. I cannot see why the law on rape should be any different from any other law.
§ Mr. Alexander W. LyonThe reason for Clause 2 is that the rules relating to the cross-examination of a complainant in a rape case have long been very much wider than the rules that allow relevant cross-examination of the character of a complainant in any other kind of case. They have now reached the stage where, despite the suggestion that advocates keep within reasonable bounds, women have been attacked about their sexual conduct in circumstances that could have no clear relevance to the circumstances in hand. It was that judgment that caused Heilbron to recommend this clause, and it is on that basis that the clause was included.
My only doubt in Committee was whether the clause as drafted was too complex, and whether it would be possible simply to give the judge the discretion. As I indicated in Committee, the speeches of the hon. and learned Member for Thanet, West (Mr. Rees-Davies), persuaded me that it might be risky simply to leave it to a member of the legal profession, even though he had been elevated to the Bench, to decide what was relevant and what was not. Some of the hon. and learned Gentleman's hair-raising stories were amusing, but they were hardly indicative of a dispassionate view of what was relevant in a sex case. That failing has been reinforced from what has fallen from the lips of my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee). In those circumstances, I remain of the view that I formed in Committee, that the clause is necessary.
However, I think that the clause is too complex. It was my hope that the parliamentary draftsman would produce a simpler draft. I see that he has not. I sat down at five minutes' notice to draft Amendment No. 15. I do not pretend that it can adequately meet the circumstances of the case. That is why I am paid £5,000 a year and the parliamentary draftsman is paid a great deal more. He ought, at any rate, to sit down for rather longer and earn his keep in deciding a simpler draft, which meets the. circumstances of the case.
1987 I fully accept that the brief before the Minister shows the inadequacy of this drafting, but it is clear that, given a little time and a little more effort, a simpler way could be devised to meet the requisites of Clause 2 in a way that would make it much more easy to administer in court.
The parliamentary draftsman should recognise that these matters are decided in the middle of a trial by a judge who has to make up his mind almost immediately whether an issue is relevant. It would be of more help if the language could be simpler than that at present contained in Clause 2.
I have no doubt that the Bill will have difficulty with the judicial members of the other place if we do not simplify it, Therefore, all that I say in respect of Amendment No. 15 is that perhaps, before the Bill goes to the other place, the Government might look at it again to see whether it is possible, without altering the content of the clause, to make it more simple to read and therefore to administer at short notice.
§ 2.45 p.m.
§ Mr. Edward GardnerI wish to express my own disbelief in the efficacy of Clause 2 as it is drafted at present. As the hon. Member for York (Mr. Lyon) said, the aim of such a clause is to put in as simple language as possible, so as to gives as lucid and as clear a guide as can be drafted, rules that a judge can follow and that we can all understand.
What we have in the clause is a minor piece of obfuscation. It is obvious that something must be done about it. I hope that I am not being too optimistic in saying that I am sure the Minister will take the point and see that something is done about it.
The amendment of the hon. Member for York certainly has the virtue of being much simpler than the original clause. Provided that we have the undertaking that I hope will be forthcoming from the Minister, that the whole matter will be looked at again and that something more simple and plain, like the drafting of the hon. Member for York, ultimately will be part of the Bill, if we are not happy —because there is some uncertainty about whether we need a clause of this kind at all—at least we shall not have the 1988 feeling of disquiet that the present clause gives us.
§ Mr. LawrenceI have two objections to Clause 2. The first is that which has been adumbrated by the hon. Member for York (Mr. Lyon) and my hon. and learned Friend the Member for South Fylde (Mr. Gardner), which is that it is absurdly complex. It will raise a number of issues, any one of which could give grounds for appeal, with all that that involves—an appeal against the judge's rulings—which will unnecessarily waste time and public money and cause much human distress.
Perhaps I may indicate what will happen if the clause is left in the Bill. Counsel appearing for someone who has been convicted of this offence may question, in a higher court, whether the judge might reasonably have been satisfied; what is relevant generally; what is relevant in this case; what the words "disposition in sexual matters" mean; what is "a striking relationship"; what are "matters connected with a way"; and, really, what the whole of subsection (3) means.
Reading through the subsection quickly, it appears to say that cross-examination as to the victim's disposition in sexual matters is not relevant unless the judge considers it to be relevant, which is an absurd proposition. Therefore, I am concerned not only about the clause as it stands—I say this out of no disrespect for the hon. Member for York, who served in his position with such recent distinction—but about the complexity of the amendment.
I hope that this whole matter will be reconsidered from the point of view of complexity. There does not seem to be any point in making more work for lawyers, because that means trouble for everyone else in our society who has to pay money.
My second objection is even more fundamental. I fear that subsection (3) may lead to injustice. A woman with a past can be the victim of rape—that is established legal precedent—but she is less likely to be the victim of rape than a maiden aunt, an unpromiscuous virgin, or a respectable married woman. If a defendant is to be stopped from drawing to the attention of the jury, which is to decide the entire issue, the question of 1989 consent, which in many cases is a very difficult matter for it to consider, and if he is to be denied the right to draw to its attention the fact that the woman has a past—if she has one—which is not an issue that necessarily goes to the definition of truth at that stage, I am worried that the jury may take a completely different view of the case than if it had known that the lady had a past.
Any woman who is subjected to allegations that are found to be unjustified by the jury needs to be protected. I am often accused of being a bit reactionary, but I agree that it has always been wrong to publish unjustified allegations. It is right that the victim should be protected. That is why we have given the woman that right in the Bill. by anonymity. However, unfounded accusations would now be confined to the ears of the very small public that attends most courts these days, and the cars of those who are concerned with the trial itself. In view view that is a small price to pay for the avoidance of any possibility of injustice to the accused in an offence as serious as rape.
I have real doubts about the whole tenor of the clause. Even if it were reworded and redrafted to avoid some of the complexities, I should still have those doubts. It may not undermine the other important aspects of the Bill, and we have no desire to impede the Bill's passage, but I am worried. I know that hon. Members on both sides of the Chamber, especially some of the lawyers, are worried about the possibility that the restriction on cross-examination will lead to some injustice. I ask for the matter to be reconsidered.
§ Mr. JohnThe effect of the clause is to give effect to the Heilbron Group's recommendations Nos. 3, 4, 6, 7, and, in most part, 5. In answer to my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee), one either accepts the great care with which the group went into these matters, and the conclusions at which it arrived, or one does not. The group, whose chairman, as my hon. Friend says, is a learned jurist, came to the conclusion that the test of relevance was not enough. That has been echoed by my hon. Friend the Member for York (Mr. Lyon) and the hon. Member for 1990 Burton (Mr. Lawrence). The group took the view that it was necessary to introduce something to supplement that test.
It is said by the hon. Member for Burton and by my hon. Friend the Member for Handsworth that the clause may have the effect of shutting out cross-examination that would otherwise be material, and that it will be a great restriction upon the defendant, and especially on the advocate. There is provision, by leave of the judge, to cross-examine on restricted matters other than with the leave of the complainant. As I have said, the leave of the judge must be obtained before that is done. We believe this to be the best compromise to take account of the Heilbron point that cross-examination has ranged much wider than was strictly relevant to the case. I could quote the paragraphs from the report, but the hour is late and I hope that hon. Members will forgive me for not doing so.
The clause, as drafted, has appeared to take account of cross-examination that has ranged rather wider than the trial issues and may not have been germane to the issue in hand. I accept immediately from my hon. Friend the Member for York that it is a long, complex and intimidating clause. It has been given consideration in the interim, although that consideration has so far been abortive. Nevertheless, consideration has been given. I think that all hon. Members will recognise that there is a need to draw a balance between reasonable convenience in reading and the comprehensive nature of the clause, which is designed to meet a number of cases and the concepts that Heilbron adduced. Nevertheless, I am happy to give the undertaking than I shall resume the search for further simplification. Without making any promises, I shall see what I can do to make the clause simpler, more relevant and more readable.
I am not prejudging the situation. It may be that at the end of the day it would be better to accept the present draft, although it is long and indigestible, than a shorter draft which does not meet a number of circumstances. We must throw ourselves on the mercy of the legal acumen of the various Law Lords and others in another place.
1991 I do not know whether my hon. Friend the Member for York, who rather disarmingly moved his amendment by saying that he thought it to be defective and knew it might be subject to objection, wants me to deal with his amendment in detail. I hope that he will accept my assurance that it is defective in a number of particulars.
As I have said, we shall have another look at the clause to see what we can do with it. Given that assurance, I hope either that my hon. Friend the Member for Handsworth will ask leave to withdraw the amendment, which seeks to delete the clause, or that the House will reject the amendment. We believe, in line with the Heilbron Group, whose report we accept, that the clause is necessary to give protection to those who are confronted with matters that are not strictly relevant, and are more hurtful than germane to the trial. It is in that sense that I hope the House will agree—
§ Mr. Rees-DaviesThe Minister of State has not mentioned Amendment No. 14, which seeks to insert the words:
(1) If at a trial before the Crown Court at which a person is charged with a rape offence to which he pleads not guilty the judge is satisfied that it is irrelevant to issues arising in the trial to question the complainant regarding her sexual experience with any man other than the defendant the judge may rule that such evidence is inadmissible".As I understand it, the hon. Gentleman is not suggesting that the amendment is not in proper form. What does he say about its being fair and proper to leave the matter of the relevant issue to the judge?
§ Mr. JohnI have dealt with the speeches that have been made on this group of amendments rather than with all the amendments that have been tabled. However, I shall deal with the point that the hon. and learned Gentleman has raised. It seems that if the only test is one of relevance, as the hon. and learned Member for South Fylde (Mr. Gardner) stated earlier, it is strictly not necessary to enshrine it in a Bill of this sort. In fact, it is already there.
The Heilbron Group's report says that the relevance test is too narrow and that further efforts need to be made. That will give rise to the issue of the relevance of 1992 a great deal of evidence that the Heilbron Group considered should be excluded. It is the view of the Government that the Heilbron Group's report on this particular is accurate and that a more detailed and relevant test should be adduced.
It is for that reason that I hope that the hon. and learned Gentleman will not wish to press Amendment No. 14. Since Amendment No. 22 is consequential upon it, he will not expect me to answer substantively on that.
§ 3 p.m.
§ Mr. Rees-DaviesThe Government have not expressed to the country the very serious nature of what is proposed in the clause. It is proposed to prefer to stake the reputation of a witness or complainant against the liberty of the accused. It is admitted that relevant evidence that might secure an acquittal of the accused, whose liberty is at stake, is to be excluded, in the interests of preserving the reputation of the witness or complainant whose liberty is not at stake.
That is a totally untenable proposition. It is said that so important is it to protect the reputation of the complainant that evidence that may be harmful to it is to be excluded, even although at present the judge will rule that such evidence is a relevant and material factor to be taken into account in order to secure the liberty of the accused person. Once the issue is stated in that way, I hope that my hon. Friends will agree that it is a proposition to which we cannot accede. I do not believe that in another place their Lordships will accede to it, either.
On Clause 2 one has to consider whether there are any particular limitations that can be applied within the ambit of the clause which are not relevant to the liberty of the accused person—and I think that one can say that they are so stated. But it has not been in accordance with the tradition of this House—and there is very little, if any, precedent for it—that there should be interference in the laws of criminal evidence to such an extent as to interfere with the discretion of the judiciary in determining what it regards as evidence relevant to the defence of the accused person.
In those circumstances we should be very chary of introducing a clause, like Clause 2, which is solely related to the 1993 law of evidence and is also to a very large extent supported by a large majority of those without experience of criminal trials. With the exception of the lady judge who presided over the advisory group, a very large number of the other members—and I say nothing against them—were psychiatrists, children's officers and so on, who had very little knowledge of the criminal law. The eminent lawyer from Canterbury who was associated with the group is a commercial, not a criminal lawyer, and the same is true of the other lawyer member of the group. If that group were set up again today, and if it were comprised to a larger degree of those with experience of the criminal law, I do not believe that it would have come to the same conclusion.
It was a hand-picked group, not in the sense that it was fixed in any way—I do not mean that—but in the sense that it was widely composed. I believe that it transgressed into the criminal law with insufficient experience of what it was seeking to do.
The clause is most unsatisfactory. Not only is it very lengthy; it is most confusing in many aspects. It provides that leave would not be given for the exclusion of evidence except on application by or on behalf of the defendant, made to the judge at the trial in the absence of the jury. Such a provision does not need to be included, because it is procedural practice of the courts to provide that matters of this sort are heard by the judge in the absence of the jury.
The clause goes on to specify the restricted matters. No ordinary juryman, on a direction by a judge, could begin to understand what this is about, and it is even difficult for lawyers to understand it. Referring to the application, it says
If … the judge is satisfied that it is made wholly or mainly for the purpose of showing that a complainant behaved on a specific occasion in accordance with her disposition in sexual matters".It is difficult to judge until the evidence has been heard.Then it says:
the judge shall treat the restricted matters to which the application relates as not being of such relevance …unless he is also satisfied that there is a striking relationship between—We debated this at some length in Committee. Labour Members took a completely different view from me about relevant matters of disposition. I thought that certain matters that showed the disposition of a lady on previous occasions would be treated as relevant by a judge. The hon. Member for York (Mr. Lyon), who was then speaking from the Government Front Bench, totally disagreed with me. He was perfectly entitled to his opinion.
- (a) a way, or matters with a way, in which the complainant is alleged to have behaved on that occasion; and
1994 - (b) the restrictive matters in respect of which the application is made or connected with those matters."
Under this clause different judges would arrive at very different conclusions about relevant matters which they would permit to be the subject of cross-examination.
In the ordinary way a cross-examiner on behalf of the defendant raises such matters only when the question of consent arises. He will deal only with the woman's disposition in relation to sexual intercourse with the defendant, or her previous behaviour with him. There are a number of occasions on which a cross-examiner will be interested in a woman's general reputation. If she is a woman whose disposition is such that she is willing to take money for sexual intercourse, either before or after the event, it may well be relevant to show that she is a woman of such loose moral character that, just as she was willing to take money and be a prostitute on other occasions, likewise she was minded to have sexual intercourse with the defendant.
As I understand it, Rose Heilbron would take that right out of Clause 2. That is wrong. Some judges might rule that that was relevant matter for cross-examination. In any event, I would wish it to be open to the defence to cross-examine about such matters if it were a right and proper case.
The defence might not decide to cross-examine along those lines until the middle of the cross-examination. It might not decide to take that line at the beginning. It might want to see how the case was running, and whether the evidence was directly pertinent. Those are decisions for counsel in charge of the case, subject to the judge ruling that it is relevant and proper for the defence so to cross-examine.
§ Mr. LeeIs there not another aspect? It may come to the notice of the defence lawyers that the woman concerned has a psychological condition that leads to nymphomania. That involves her having sexual relations with a large number of persons. Is it not desirable for cross-examination in certain circumstances to go beyond what is specified? Therefore, cross-examination about sexual acts with other persons unrelated to the man charged could be germane. That should be included.
§ Mr. Rees-DaviesI entirely agree with that proposition. That could arise in certain circumstances. It might well be proper to include a clause to that effect. In reply to my hon. and learned Friend the Member for South Fylde (Mr. Gardner), the Minister of State said that the amendment that I tabled was not necessary because it merely reinforced the existing law. But it may still be worth reinforcing the existing law to try to ensure that the judge's attention is drawn to the burden of proof and that this class of cross-examination is not permitted without consideration being given to it.
The Bashir and Krausz cases—Krausz's case in particular—seem to be directly relevant. The Heilbron Group was against those cases. I think that we should ensure that the judges have the opportunity of considering these matters.
My hon. Friend the Member for Burton (Mr. Lawrence) rightly said that the sting of the complaints by complainants has been lifted. The legitimate grievance of women complainants has been that, hav-
§ ing laid complaints and gone into court, they have been subjected to the media—the local and sometimes the national Press—which have reported the questions that have been put which reflect upon their conduct and reputation, even when they have behaved perfectly properly. The cloak of anonymity that the House will no doubt agree to give in respect of the hearing of their evidence in courts so that it will not be reported is the great protection.
§ I do not believe that the nature of cross-examination by defending counsel has led to the gravamen of these complaints. They are very few cases where that arises. It does not usually arise unless the solicitor and the client instruct counsel to raise it. Such cases are always in the Crown courts, not the minor courts. Therefore, the complainant has the protection of the judge and of counsel, who will ensure that the questions do not go wider than they should in a fair cross-examination.
§ In the case of evidence that is to be limited, because it is said that it will sully the reputation of the complainant, the fact that such evidence is no longer to be reported means that there is no reason why the complainant's reputation should be sullied in any way. If we are to weigh the advantages and disadvantages, the scales should always come down, as justice always should, on the side of the defendant.
§ Question put, That the amendment be made:—
§ The House divided: Ayes 15, Noes 42.
1997| Division No. 152.] | AYES | [3.14 p.m. |
| Boyson, Dr Rhodes (Brent) | Lester, Jim (Beeston) | Weatherill, Bernard |
| Clark, Alan (Plymouth, Sutton) | Miscampbell, Norman | Wells, John |
| Cockcroft, John | Shersby, Michael | |
| Gardner, Edward (S Fylde) | Sims, Roger | TELLERS OF THE AYES: |
| Gow, Ian (Eastbourne) | Stradling Thomas, J. | Mr. W. R. Rees-Davies and |
| Havers, Sir Michael | Townsend, Cyril D. | Mr. John Lee. |
| Lawrence, Ivan | ||
| NOES | ||
| Archer, Peter | English, Michael | Mikardo, Ian |
| Armstrong, Ernest | Ennals, David | Mulley, Rt Hon Frederick |
| Ashley, Jack | Fletcher, Raymond (Likeston) | Pardoe, John |
| Beith, A. J. | Fowler, Gerald (The Wrekin) | Parker, John |
| Bishop, E. S. | Harrison, Walter (Wakefield) | Peart, Rt Hon Fred |
| Bottomley, Peter | Janner, Greville | Perry, Ernest |
| Carter, Ray | John, Brynmor | Richardson, Miss Jo |
| Cartwright, John | Kaufman, Gerald | Sandelson, Neville |
| Cocks, Michael (Bristol S) | Lipton, Marcus | Silkin, Rt Hon S. C. (Dulwich) |
| Cox, Thomas (Tooting) | Lyon, Alexander (York) | Silverman, Julius |
| Cunningham, G. (Islington S) | McNamara, Kevin | Stallard, A. W. |
| Duffy, A. E. P. | Meacher, Michael | Summerskill, Hon Dr Shirley |
| Tuck, Raphael | Whitehead, Phillip | TELLERS FOR THE NOES: |
| Wainwright, Richard (Colne V) | Williams, Sir Thomas | Mr. Edward Lyons and |
| Walker, Harold (Doncaster) | Wise, Mrs Audrey | Mr. Robin Corbett. |
§ Question accordingly negatived.
§ Mr. LeeI beg to move Amendment No. 18, in page 2, line 25, leave out 'such a striking'.
There need not be much discussion of the amendment because it is to some extent enveloped in the discussion on Clause 2 as a whole. Many of the strictures passed by the hon. and learned Member for Thanet, West (Mr. Rees-Davies) on the clause as a whole are strikingly—I use the word in a double sense—illustrated by the use of the unusual and imprecise term which appears in the amendment, "such a striking" relationship. I propose to read the relevant subsection, otherwise it may be difficult to follow the argument.
Clause 2(3) is worded as follows:
If on such an application the judge is satisfied that it is made wholly or mainly for the purpose of showing that a complainant behaved on a specific occasion in accordance with her disposition in sexual matters, the judge shall treat the restricted matters to which the application relates as not being of such relevance as is mentioned in the preceding subsection unless he is also satisfied that there is such a striking relationship between —Lawyers are always accused of being pedantic in their attempts to test the precision of words. Sometimes that accusation is justified, but it is our duty to apply a magnifying glass to words and definitions to see whether they are all that they are supposed to be. My main objection to the wording is that it has no meaning. There either is or is not a relationship with a complainant's normal sexual propensity of a kind that it is right for the judge to admit. The wording does not help the complainant in a genuine case to sustain the complaint, and it does not help the defendant to rebut it. Implicit in this choice of words there is, I suppose, an intention, however ill-defined —perhaps unconscious—to limit the 1998 judge's discretion to extreme cases. The objections which I raised to the clause as a whole are exemplified in this facet of it.as to suggest that her disposition in sexual matters was to behave in a way similar to that in which she is alleged to have behaved on that occasion.
- (a) a way, or matters connected with a way, in which the complainant is alleged to have behaved on that occasion; and
- (b) the restricted matters in respect of which the application is made or matters connected with those matters,
Without going over the ground that was covered in the debate on Clause 2, which may still receive attention in another place, it seems to me that the rationale behind the attitude of the movers of the Bill is that they want to make it more difficult for a defendant to rebut an accusation of rape and easier for a complainant to pursue an accusation of rape and be as little embarrassed as possible on the way. Again, that begs the question. One can have nothing but sympathy for the person who makes a genuine complaint. If the complaint is not genuine, it is perjurious and wicked. One can have no sympathy whatever with the complainant in that case.
3.30 p.m.
I wish that at an earlier stage of the Bill attention had been directed to making it easier for a person who had been acquitted of a rape case to bring an action against the complainant. That can be effectively dealt with only in a revision of the law relating to malicious prosecutions generally. I hope that that will happen, but at present we must deal with the situation of malicious prosecution as it is. Such accusations are rare indeed, and are rarely successful. We cannot rely on that. The least we can do is to remove from the clause tendentious, emotional, imprecise and basically unhelpful phrases of this kind which at best are irrelevant and at worst harmful to the interests of justice. We must always bear in mind throughout all criminal matters the right to safeguard the interests of a defendant and ensure that no conviction takes place unless a jury is completely convinced and sure that it is well-founded.
The hon. and learned Member for Thanet, West said that it is unusual for this House to seek to hamstring a judge's discretion in sifting evidence in a criminal matter. The most important function of a judge, apart from summing up in a case to a jury at the end of a trial, is to ensure that the case is fairly conducted on the way to that summing up. That may be said to be obvious. 1999 but one of the ways of ensuring fairness is to make certain that a defendant is not being improperly hampered.
I suppose that I should be out of order if I were to refer to a well-known trial now taking place at the Central Criminal Court, but one of the duties of a judge is illustrated by that trial. However, I do not want to stray into that matter because there are many other matters in this Bill that require consideration. I have made my point clearly and do not propose to say more at this stage.
§ Mr. JohnMy hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) has said that the purpose of his amendment is to bring greater precision to Clause 2 in dealing with ancillary matters which can form the basis of cross-examination about other occasions.
Let me briefly read to the House the recommendation of the Heilbron Advisory Group which considered this matter at some length:
The trial Judge's discretion should be guided by and based on principles set out in legislation.This effectively answers the point about any matter involving any fettering of the judge's discretion. Secondly, in 4(a) the recommendation relates to evidence where
behaviour on the part of the complainant … was strikingly similar to her alleged behaviour on the occasion of … the alleged offence.In my view, the test that my hon. Friend propounds is too vague and would not in its effect shut out the questions to which the Heilbron Advisory Group took exception. Heilbron favoured a strict test, and I believe that that is the will of the House, as it was manifested by the last vote that it should be so. My hon. Friend has legitimately said that it is not his will. However, one has that position and the House has now approved the clause, which strictly limits and confines the cross-examination to that which the Heilbron Advisory Group considered to be relevant to the conduct of the case.I would not want anyone to go away with the impression, on the basis of some statements of my hon. Friend the Member for Handsworth, that what the Government or what my hon. Friend the 2000 Member for Hemel Hempstead (Mr. Corbett) are seeking to do by the Bill is to hamstring the defendant in such a way that he does not get a fair trial. I believe that there is a way of securing a fair trial on a basis that does not go into every squalid, gossip-type situation with regard to the sexual propensities or reputations of the complainant.
§ Mr. LeeDoes my hon. Friend agree that the term "such a striking" really connotes an extreme situation?
§ Mr. JohnI believe that the connotation is that it must show relevance to the incident which is the matter or inquisition at the trial concerned. If that is so, I make no apology for that. I believe that the wording achieves what the Heilbron Advisory Group and the majority of Members of the House of Commons want. It is for that reason that I hope that my hon. Friend will not press the amendment.
§ Amendment negatived.
§ The following amendment stood on the Order Paper:
§ No. 19, in page 3, leave out lines 14 to 16.
§ Mr. LeeI shall not detain the House long on this amendment. [HON. MEMBERS: "Withdraw it."] The wording is quite brief. It is in relation to questions put to a witness. In determining at a trial whether questions are proper, a number of matters are illustrated. The amendment seeks to delete paragraph (a), which refers to
a complainant's sexual experiences with the defendant or a complainant's disposition in sexual matters with respect to the defendant".Again, as has been said in relation to the whole clause, there is in the back of our minds always the fear that a judge may construe this so restrictively as to make it almost impossible for a defendant to conduct his defence properly. We must not forget—I hope that I shall not transgress the rules of order in saying this—that judges, like the rest of us, differ in temperament and in their approach to matters.Some judges have a reputation, fairly, for being lenient as to the scope of cross-examination within the rules. Others do not have quite the same reputation. Anything that tends to reduce the elbow room for an advocate makes his task more 2001 difficult, particularly when he is dealing with a judge who is inclined to impose a restrictive approach to these matters.
One of the difficulties in drafting amendments to a Bill—I drafted a number of my amendments some days ago—is that one never knows in advance which amendments will be selected. Therefore, one tables separately amendments which perhaps could be bracketed together, not knowing whether they will be bracketed. The Chair has been kind to me and indulgent in a way that I was not expecting on this amendment.
§ Mrs. Audrey Wise (Coventry, South-West)Why talk then?
§ Mr. George CunninghamWhy did not my hon. Friend serve on the Committee to make these Committee points?
§ Mr. LeeMy hon. Friend knows that I did not take part in the Second Reading debate. I take matters of order from the Chair, not from my hon. Friend.
§ Mr. George CunninghamIt is not a matter of order; it is common sense.
§ Mr. LeeNo doubt my hon. Friend will have an opportunity to intervene.
As I would have said a few moments ago but for the interruptions, I do not propose to press the amendment.
§ Mr. Deputy Speaker (Mr. Bryant Godman Irvine)The next amendment is Amendment No. 23.
§ Mr. John LeeThis amendment falls into the same category, and I do not propose to press it.
§ Mr. Rees-DaviesOn these restricted matters, the amendment—
§ Mrs. WiseOn a point of order, Mr. Deputy Speaker. On what amendment is the hon. and learned Gentleman speaking?
§ Mr. Deputy SpeakerIf he is not speaking on Amendment No. 23, he is out of order.
§ Mr. Rees-DaviesI am speaking on Amendment No. 23.
§ Mr. Deputy SpeakerThat was not my impression. I was under the impression that the hon. Member for Birmingham, 2002 Handsworth (Mr. Lee) said that he proposed to take no further action in the matter. That leaves it open to the hon. and learned Member for Thanet, West (Mr. Rees-Davies) to move it if he is so minded.
§ Mr. Rees-DaviesThat is what I propose to do, Mr. Deputy Speaker.
I beg to move Amendment No. 23 in page 3, leave out line 40.
The essence of Clause 2 turns on what I call the restricted matters. The defendant's counsel is not to be entitled to cross-examine on three matters. The first is
the sexual experiences … of a complainant with a person other than the defendant".I understand that. They would be relevant only in special circumstances.The second matter is her
disposition in sexual matters excluding her disposition with respect to the defendant".Again, that would seldom be relevant. It is a question of how she conducts her affairs and it has nothing to do with the defendant. It can be relevant only in limited circumstances.The third matter is her
reputation in sexual matters".I have always taken the view that if one is able to establish that a woman is a woman of thoroughly ill repute in sexual matters—if she is a known prostitute or is known to associate in particular public places as a nymphomaniac—if it is a question of consent and the matter being determined by the jury is whether she went with the man voluntarily for the purpose of sexual intercourse, her reputation in sexual matters must be relevant, and I would not wish it to be treated as a restricted matter.If the whole question is to be considered again, the Home Office, in the light of its undertaking to consider the clause again, must deal with this matter if it is not prepared to leave it to the ordinary rules of evidence to enable the judge to decide whether a woman's sexual reputation is relevant in the circumstances of the case. In many instances it would not be; in some it would be relevant.
§ 3.45 p.m.
§ Mr. JohnLet me make clear what I undertook to do. I undertook to look 2003 at the drafting of the clause to see whether it could be dealt with in a more readable and concise form. I would not want certain glosses to be put on that undertaking.
The effect of this amendment would be to except the complainant's reputation from the restricted matters definition, and therefore, evidence on it could be adduced without leave of the judge. I believe "reputation" to be the vaguest concept possible. If, however, it is relevant to the trial, the defendant has the opportunity, by leave of the judge, to put it. I believe that it is safer to leave the matter to the judge to consider whether it is relevant. To make it an unrestricted matter would, on so vague a concept as reputation, be thoroughly harmful.
§ Amendment negatived.