HC Deb 18 November 1976 vol 919 cc1674-85

Lords amendment: No. 1, in page 1, line 21, leave out Clause 2 and insert— A.—(1) If at a trial any person is for the time 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. (2) 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 to that defendant to refuse to allow the evidence to be adduced or the question to be asked. (3) In subsection (1) of this section "complainant" means a woman upon whom, in a charge for a rape offence to which the trial in question relates, it is alleged that rape was committed, attempted or proposed. (4) Nothing in this section authorises evidence to be adduced or a question to be asked which cannot be adduced or asked apart from this section.

8.20 p.m.

Mr. Robin Corbett (Hemel Hempstead)

I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)

With this we may take Lords Amendments Nos. 2, 3, 4 and 5.

Mr. Corbett

These amendments, which were moved by the Government on Third Reading in another place, are designed to meet the comments made in both this House and another place on the need to simplify Clause 2. It had been criticised in both places as being difficult to follow and rather tortuous in its construction.

On Report, my hon. Friend the Minister of State undertook in this House to see whether something could be done to reduce the complexities of Clause 2, but this was unable to be done before Third Reading. Since then we have heard the views and received the advice of noble and learned Lords with practical experience of dealing with rape cases. I am glad to be able to tell the House that they are content with the amendments which I am now commending to the House.

The clause, as hon. Members will see, retains the important test in the Heilbron Group's recommendation—namely, that prior leave of the judge in the absence of the jury must be obtained before questions can be asked in cross-examination or evidence can be adduced by or on behalf of the defendant about the complainant's sexual experience with any man other than the defendant. I am pleased to tell the House that the sponsors of the Bill accept the need for the replacement of Clause 2 in the terms of the amendment.

Mr. W. R. Rees-Davies (Thanet, West)

It is remarkable to hear, for once, about the experience of their Lordships. It is also remarkable that we should actually have the Government asking us to accept a Lords amendment. We have been through the Race Relations Bill on which every amendment worthy of consideration from another place was reversed by the Government. We found yesterday that Lords amendments to the Rent (Agriculture) Bill, many of which were worthy of mature consideration in this Chamber, were reversed. Yet, in this case we hear in the dulcet tones of the promoter of this Bill—the hon. Member for Hemel Hempstead (Mr. Corbett)—that the Government agree with another place today and, therefore, it is in their wisdom that we should accept it in its entirety.

The new clause is an immeasurable improvement. I have hardly ever seen any clause which ran to two pages which was so confused or obtuse and which would have made it so impossible for any jury to have understood the position, let alone for any judge to have been able to sum it up with any clarity and leave it to the jury to decide, as the original Clause 2. It would have led to unfairness, confusion and the gravest injustice.

This amendment, to large extent, carries out many of the suggestions and observations which were made by the Opposition at earlier stages. We invited the Government to take away Clause 2 and to produce a new clause. To the extent that has been done in another place, it is certainly a great improvement on the previous position. Nevertheless, there are one or two aspects which still leave a great deal to be desired.

The first aspect is extremely wise and we pressed it with the acceptance of many Labour supporters, such as those who were prepared to attend, who were very few in number. Subsection (2) provides that the judge shall not give leave in pursuance of this section for any evidence or question relating to the sexual experience of the complainant to be given except in the absence of the jury. It is plainly right to invite the whole of this matter to be dealt with as in practice it is so often dealt with in criminal cases—namely, that the application with regard to evidence which may be of a controversial nature should take place in the absence of the jury. I am sure that my hon. Friends would unanimously agree with that proposition.

Secondly, it is right that the judge should give leave only if he is satisfied of a certain proposition. However, the proposition suggested imposes a burden of proof which is against the accused. It suggests that the judge must be satisfied that it would be unfair to the defendant to allow the evidence to be adduced. For example, he would have to be satisfied that it would be unfair to the defendant to adduce any evidence that the complainant was a prostitute or a woman of thoroughly loose morals who would be prepared to go to bed with any man perhaps if she were under the influence of alcohol or for the sake of money.

The burden of proof is thus thrown on the defendant, and defendant's counsel appearing in a rape trial, to satisfy the judge that it would be unfair to him. That is contrary to the principles of natural justice which have obtained in this country for many centuries. The burden of proof has always lain upon the Crown throughout to establish that it will not be unfair to the defendant.

I am surprised that the other place, with all the experience it is suggested that it has in these matters, should have put forward something which overturns that burden and places the burden upon the defendant. I believe that is unfair to the defence.

I want to say what I believe would have been the right words to have inserted, and which would be acceptable to the juries of the country, the judges and all those right across the hemisphere of the world who think so highly of the principles of justice in this country. It should read as follows: On such an application the judge shall give leave only, and only, if, he is satisfied that it would be relevant in all the circumstances of the case put forward by the defendant that he should allow the evidence to be adduced or the question to be asked. The issue is whether it is properly relevant to the case put forward by the defendant. That case can vary in an immense variety of circumstances.

I agree that we needed a change. I agree that under the present law a woman's character and conduct might have been unreasonably impugned, but the test is whether it is directly relevant to the proper case being put forward by the defendant. The test is one of relevance. It is whether it is reasonably relevant in all the circumstances to the proper case put forward by the defendant. I would therefore have liked to see the Lords amendment amended in the way that I have suggested.

Nevertheless, the Bill has been through the House and Committee and has come before the House again for Report and Third Reading. It has had a fair consideration in another place. Bearing in mind all of those facts, it seems that this has crept into an amendment which, frankly, I would rather not have seen. However, I have no doubt that the amendment will be agreed to. But it may well be found that injustice will occur in some cases for judges will have to take a very hard view of their attitudes whether this is unfair to the defendant.

8.30 p.m.

It is of the greatest importance that judges bear these views in mind for cases will otherwise arise where, in an endeavour to seek a fair balance between the complainant and the defendant in a rape case, it will be exceptionally difficult to arrive at the correct interpretation of the facts. We may find that in endeavouring to do justice to the woman we end up by doing injustice to the man. That is a possible danger, although the new clause is an immense improvement on the previous position.

In Clause 1 we have defined matters which very much identify the existing law. We have also dealt with the question of the cloak of anonymity—an important factor to the women of this country and to the men, too. In those circumstances I myself would not be prepared, in isolation, to vote against the new clause although I would have preferred to see it amended in the manner that I have indicated.

Mr. John Lee (Birmingham, Handsworth)

Not for the first time I find myself not in entire agreement with the hon. and learned Member for Thanet, West (Mr. Rees-Davies). In many ways this has been a long, rather vexing and troublesome Bill. It would be idle to pretend that I am satisfied with the general philosophy behind it. I shall not detain the House for long nor shall I seek to go over ground which lies outside the scope of the amendments that we are now discussing.

There can be no doubt that compared with the long-winded and tortuous wording of Clause 2, as it left this House, what we now have has the considerable advantage of brevity. It also has the considerable advantage of clarity.

I am bound to echo the remarks of the hon. and learned Member for Thanet, West that it leaves at large the question of the burden of proof in the resolution of the issue before the court. With the sole important exception of insanity—there are one or two other technical exceptions relating to forgery and coinage, which do not matter—the burden lies on the Crown throughout. Whatever twists and turns a criminal trial may take, once the issue is raised and made clear it is to the Crown that one looks to prove or disprove a matter in question. In other words, it is for the Crown all along to bear the heat and burden of the day.

To the extent that the new clause clearly fails to support that principle it is open to a considerable measure of criticism. It is not put completely the other way. It is left at large. That leads me to a comment which in practice may resolve the problem or considerably reduce the risk of injustice.

Nowhere in the Bill is there laid down anything to guide the judge on the way in which an application to question the relationship of a prosecutrix with regard to third parties should be evaluated. I tentatively assume that when that issue is raised there will have to be a trial within a trial. It will be open to the defence—and the defence should be able to insist upon it—that where it is sought on behalf of a defendant to cross-examine a woman as to her relations with other persons, or to raise some other issue of that kind which the Bill seeks as a generality to exclude, in the absence of the jury to cross-examine the witness on the lines along which he will seek to cross-examine the witness before the jury, and also to aduce such evidence as may be necessary by calling his client or any other witness to establish that it would be unfair for such matters to be withheld from the jury. The Bill is silent on that.

I pay tribute to my hon. Friend the Minister of State, with whom I have had several talks about this. To an extent he has been able to allay some of my fears. I have had to address myself to the fact that this procedure of a trial within a trial, well-known to criminal lawyers, is not enshrined in statute. It is a practice that is commonly pursued when, for example, one seeks to challenge some admission or confession on the ground that it had been improperly obtained. Sometimes, but not invariably, these matters are resolved by argument and advocacy. More often than not, the practice is for the jury to withdraw and for the issue to be canvassed in the presence of the judge alone. Evidence is adduced on both sides, the Crown tenders its witness, the defence gives evidence and calls evidence and addresses are made to the judge before the matter is resolved.

That is not in the Bill. I appreciate that as it is a matter of practice rather than statutory law or subsidiary legislation it would be somewhat incongruous if we were to embody the trial within the trial procedure statutorily in this piece of legislation when it is not statutorily embodied in legislation that appertains to the generality of criminal trials. My hope is that people in exalted places will consult, and that we shall have from the appropriate quarters—I apprehend the Lord Chief Justice—some practice direction that will be of guidance to the courts when these matters are put to the test.

I cannot claim to be wholly satisfied with what has happened. I would prefer the burden to be placed unambiguously upon the Crown to prove that it would not be unfair to exclude evidence, but the Government and my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) seem unable to concede that. The provision as it has come from the Lords is an improvement and goes some way to reducing the risk of injustice. Therefore, in the circumstances, I am prepared to accept it, although not perhaps with enthusiasm.

It has been said more than once on this Bill that in rape offences risks of injustice are great. In the nature of rape offences, it is obvious that one cannot easily look for corroborative evidence. Even in these permissive and avant-garde days people do not normally have sexual intercourse, whether consensual or otherwise, in public. Therefore, it is not likely that there will be bystanders who will be able to give testimony to back that of a prosecutrix on the question whether she consented. Therefore, generally speaking, the corroborative evidence is medical in character and is sometimes to be found from the demeanour of the parties, but is often of a fairly diminutive character.

The law on rape is an area in which there will always be a high risk of injustice occurring. I hope that when the courts come to apply this law, if the Bill is enacted, as now seems inevitable, they will bear in mind that the overriding consideration must be that the Crown should prove its case. I do not think that it is the intention of the sponsors to reverse the burden of proof or to overturn a part of the criminal law which has been in existence since 1935, and in some circumstances even earlier.

I wish that these matters had been stated more clearly in the Bill. I still have considerable misgivings about this matter, but I am grateful that something has been done to rescue a situation, the results of which otherwise might have been little short of disastrous.

Mr. F. P. Crowder (Ruislip-Northwood)

I think it can be said that I am responsible for this Bill because about a year ago I introduced a Ten-Minute Rule Bill on the subject. However, I have come to the conclusion that we do not need a Bill on this matter. All that the judge needs to do—and I occasionally sit as a recorder—is to say to a jury "In rape cases you must look for corroboration." That is a most important consideration. It does not need a Bill to underline it.

I introduced my Ten-Minute Rule Bill because I felt that something should be done about the situation following a difficult case that occurred in Norfolk. We must look at these matters from a common sense view. Juries must be told, "You must have corroboration, and you must think carefully about the evidence." I repeat that we do not need a Bill to cover the situation. The view may be put in court, "Rape is easy, my Lord."

I do not think we need the Bill. It is a lot of nonsense. If judges proceed on the basis that there must be corroboration, that will meet the need. That is why I oppose the Bill.

8.45 p.m.

Mr. Ivan Lawrence (Burton)

I give this amendment a quarter-hearted welcome, and that is being generous on the side of the sponsors of the Bill. Origin ally, I had two objections. I thought that the whole idea of inhibiting cross-examination might lead to injustice and the conviction of more innocent people than would be acceptable to society— and on that I have not changed my mind.

My second objection was that the Bill was absurdly complex. It raised a number of issues, any one of which could have given rise to grounds of appeal, a waste of public time and money, unnecessarily putting money into lawyers' pockets and striking unnecessary terror into the hearts of those wrongly accused of rape. On that aspect, some good has been done.

The original Clause 2 has been simplified, and that is a very substantial improvement, but it is practically the only good thing about the amendment. I agree with my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies) that the test which a judge should use is relevance, not unfairness. The test of relevance was originally put into the Bill by the noble and extremely experienced legal Lord, Lord Morris of Borth-y-Gest, in another place. That was for the good reason that, in the normal course of our criminal judicial approach to the ancillary questions in a criminal trial, a judge must consider whether evidence is relevant. Our system protects the judge, as far as is reasonably possible, from having to come to a decision on the merits of the case or some ancillary part of it.

It came naturally to a very experienced judge to suggest that it would be best for judges to apply the test whether such cross-examination was relevant. Once a judge has ruled that it is relevant, it is for the jury to decide whether the cross-examination is fair and true in its suggestions, and to judge the case accordingly.

However, between the Committee stage of the Bill in another place on 4th November and today, the test has been changed back to one of unfairness. It would be a waste of time to dilate longer on this point, so I say only that I would prefer to see the established criminal judicial test applied here rather than the burden placed on the judge to be subjective and judge the issue on its merits.

That leaves me with the all-important fear that I have about the amendment. Unnecessary time would be taken in my reiterating it. Not all the learned and experienced lawyers concerned with the Bill have shared my view by any means, and therefore I must bow to the ineviability of it.

There are restraints upon members of the legal profession in regard to doing anything that is improper. If they are not already inborn in a defendant's lawyer, they will have been trained into him. If they are not trained into him, these matters will be watched over by the judge in the case. The fact nevertheless remains that if the defendant's lawyer is unable to draw attention to a woman's past, an injustice may very well result.

As I said at an earlier stage of the Bill, a woman with a past can, of course, be the victim of rape, but she is less likely to be the victim of rape than your maiden aunt, Mr. Deputy Speaker, or a respectable married woman, or a young virgin. My fear is that a jury may very well wish it had come to a different conclusion if, having brought in a verdict of guilty, it subsequently discovers or is told that the lady concerned has been loose at some stage in the past.

Mr. Bruce Douglas-Mann (Mitcham and Morden)

I believe that one eminent lawyer has said that he has never yet lost a rape case when appearing for a defendant who pleaded not guilty. Will the hon. Member agree that the dice are already fairly heavily loaded in favour of the defendant in such a case?

Mr. Lawrence

If the dice are loaded in favour of the defence, it is only to make sure that no innocent people are ever convicted. It is a very difficult issue, which has always to be considered in cases of rape. I do not know to which learned leader the hon. Gentleman was referring. There was a speech in the House of Lords by a learned junior, who said that that was his experience. But I am surrounded here by very distinguished, eminent and learned leaders, and if I were to add my experience to theirs, I think that none of us could boast—if that is the right word—that we have always been successful in defending clients on charges of rape.

I think, with great respect to the hon. Member for Mitcham and Morden (Mr. Douglas-Mann), that the observation to which he referred was a very subjective and perhaps a very limited one for someone to have made. We have to be particularly careful in these cases. It is not just my view: it has been a traditional view in the operation of the criminal courts that in cases involving sexual offences—

Mr. Deputy Speaker (Mr. Oscar Murton)

Order. If the hon. and learned Member for Ruislip-Northwood (Mr. Crowder) will seat himself it will be easier for the House to conduct its proceedings.

Mr. Lawrence

I had quite a shock, Mr. Deputy Speaker, on seeing that most conservative of my hon. and learned Friends, the Member for Ruislip-North wood (Mr. Crowder), cross the Floor. It has almost rendered me speechless, but —as hon. Members will see—not quite.

I have come to the conclusion that, provided the clause as now amended is used with discretion and with good sound common sense by our judiciary, and by the practitioners in the courts—I seem to have heard myself saying this on many ocasions in regards to similar sorts of Bills in this Session—it may not make too much difference. I can only hope that that will be so, and that innocent persons will not in future be convicted of rape who, under the existing law, would have been acquitted.

The Minister of State, Home Office (Mr. Brynmor John)

It will probably be as well if at this stage I indicate the Government's attitude.

First, I want to deal with the matter raised by my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) about what he paraphrased as " a trial within a trial ". As he said, that is not provided for in any statute; it has been developed by judicial practice. I agree with him that the matter is left at large. There is nothing to forbid it in the Bill as drafted. It will be left to the judges, and I have no doubt that in practice they will evolve that which is necessary to see that justice is done.

A number of hon. Members have said that the Bill is not necessary. That is not a view shared by the noble Lords, especially Lord Hailsham. The suggestion has been made that the clause as drafted does not meet the original comments of Lord Morris of Borth-y-Gest. I might point out that when the Government's amendment appeared on the Notice Paper the noble Lord wrote to express his support for it and to apologise for not being able to be present when it was discussed, when, he said, he would have expressed public support for the clause as drafted.

With that assurance, I think that the House can accept the Lords amendment quite safely.

Mr. Edward Gardner (South Fylde)

The acquittal of a man charged with rape can have the deplorable effect of damaging or even destroying the reputation of a woman complainant. Although she herself is not on trial, she may appear to be guilty. This Bill not only gives a woman in proper cases the protection of anonymity but, by the clause, seeks to save her from the distress of irrelevant evidence and cross-examination about her sexual experience with someone other than the accused.

This clause, like others in the Bill, was inspired by the excellent report of the Advisory Group on the Law of Rape under the chairmanship of Mrs. Justice Heilbron.

The new clause has a simplicity and a clarity which the original clause lacked. It gives the trial judge a discretion about what shall be allowed by way of evidence and cross-examination concerning the past sexual history of the complainant.

For these reasons, the Opposition support the clause. Although we have certain reservations, which were expressed by my hon. and learned Friend the Member for Thanet, West (Mr. Rees-Davies), about the dangers that could be implicit in a change in the law, we think that the clause is a considerable improvement on the old one. I am sure that the House will feel itself indebted not only to the Advisory Group but also to their Lord ships in another place for the way in which the clause has achieved the framing of the recommendations of the report in language which we hope will be useful and clear guidance to the courts.

Mr. Lee

It will be of assistance, as it were, behind the scenes, if the hon. and learned Gentleman will say whether he shares my view about "a trial within a trial" as a way of evaluating fairness.

9.0 p.m.

Mr. Gardner

I do have sympathy with that point of view. Also, I think that the view put forward by the Minister—that this is a procedure that can grow with practice, just as other procedures which we know well in our courts have developed—will quieten most of the anxieties that would otherwise be felt.

Question put:

The House proceeded to a Division

Mr. Corbett and Mr. Andrew F. Bennett were appointed Tellers for the Ayes, but no Member being willing to act as Teller for the Noes,Mr. DEPUTY SPEAKER declared that the Ayes had it.

Question accordingly agreed to.

Lords Amendments Nos. 2 to 5 agreed to.

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