HC Deb 15 October 1976 vol 917 cc871-91
Mr. Lee

I beg to move Amendment No. 43, in page 8, line 41. leave out 'conspiracy to rape'.

We now turn to a fundamental aspect of the law. I do not know how many times in the past few years and in how many different contexts the law of conspiracy has vexed the House and people outside who are concerned with the liberty of the subect. On 17th March this year the Law Commission published a report on conspiracy and criminal law reform, containing a draft Bill which would rewrite the law of conspiracy. It certainly needs to be done.

I should have thought that some of my hon. Friends, having seen the very word "conspiracy" in the Bill would want to take part in this debate. Many of them were exercised about the application of the law of conspiracy in the context of trade union disputes, and particularly in relation to the so-called "Shrewsbury Two".

I will clear up any ambiguity by saying that in large measure, although not wholly, I share the sentiments of those of my hon. Friends who have inveighed against the law of conspiracy and its application where substantive offences could have been prosecuted and where those substantive offences carried with them lesser penalties on conviction than conspiracy per se. One can see that this is an important matter, and I think that it will have to be discussed at some length.

I am glad to see the hon. and learned Member for Thanet, West (Mr. Rees-Davies) here. He has immense experience of the criminal law, and his knowledge of these matters far exceeds mine. He will therefore have a valuable contribution to make. He may not entirely agree with the sentiments I have just expressed—I would not expect him, from his point of the political spectrum, to do so. But I hope that he will have something to say. Trying to keep one's professional and political activities apart, I pay him the compliment of saying that he carried to the House of Lords the arguments in Shaw v. the Director of Public Prosecutions, a case of conspiracy, quite eloquently, and no one is better qualified to animadvert on the law of conspiracy.

Mr. Norman Miscampbell (Blackpool, North)

If the law of conspiracy is to be changed, that is another argument for another day, but it makes no difference to the inclusion of these words in this Bill because, however the law of conspiracy is changed generally, the Bill will refer to conspiracy as it has been changed and redefined by the Law Commission. I make that point since the hon. Gentleman says that he is going to speak at some length. Could he deal with it in his remarks?

Mr. Lee

I shall do so in two ways. The hon. and learned Gentleman is falling into the trap of enunciating the insupportable doctrine that once Second Reading has occurred, the House is precluded from fundamental amendment. It is a novel constitutional proposition that is quite wrong, and I am sure that the Opposition as a whole will rue the day that any of their spokesmen, either carelessly —I do not want to be rude to the hon. and learned Gentleman—or inadvertently enunciated such a proposition, because the Leader of the Opposition will have her nose rubbed in it time and again.

1.45 p.m.

Mr. Deputy Speaker

Order. I have warned the hon. Gentleman before. He must confine himself to the substance of his amendment.

Mr. Lee

Thank you, Mr. Deputy Speaker.

The second objection is that the law of conspiracy is in need of drastic revision, that there are numerous objectionable aspects to it. Then why not start now? Quite reasonably, the hon. Member for Burton (Mr. Lawrence) put to the Minister just now an argument for at any rate modifying an aspect which he thought was disturbing, that is, the possibility of equating negligence with a criminal offence. He was met with the argument that it has always been there but that if, in the alternative, it is not there, the Minister will say something about it somewhere else. That is backing two horses, but it is a perfectly fair way for a Minister to deal with an awkward situation.

If the law of conspiracy is objectionable, as I suggest it is—although it has to exist in some form or another in certain circumstances—there is no better time than now to start changing it.

We are dealing with a novel situation. This Bill is novel. Its rationale is to confer an element of privilege on witnesses quite unique in our criminal law—not that witnesses have not, rightly so, had their names excluded from publication before. But the Bill introduces the novel concept of a statutory privilege in relation to the criminal law of a kind unknown in English criminal history as far as I am aware.

If this is a novel Bill, why should we not have some other novelties in it as well? We should not be inhibited, as this is a novel Bill, from making novel provisions in relation to any aspect of it and the objection of the hon. and learned Member for Blackpool, North (Mr. Miscampbell) is ill-founded.

One can think of some instances where, as a side wind of legislation, some quite startling innovations have occurred, and there are circumstances in which they have been insupportable. I readily concede that. But here we are dealing with the criminal law, and conspiracy is one of the central aspects of the criminal law.

Perhaps I should begin by reading out the definition as given by the Law Commission of the present state of the law of conspiracy, whether it applies to rape, murder, or fraud or any other aspect of the law. Page 5 of the Law Commission's Report on Conspiracy and Criminal Law Reform states: Conspiracy differs from other inchoate offences (whether common law or statutory) in a number of ways. The most important difference lies in the nature of the objective which will make the preparatory step in its direction criminal. In all inchoate offences except conspiracy the objective must itself be an offence. Conspiracy goes further. Agreement to commit an offence is, of course, one instance of the crime of conspiracy. However, in addition, an agreement to effect some "unlawful" object, not itself an offence if committed by one person, can amount to the crime of conspiracy. This is because of the wide meaning which has been given to "unlawful" in this context. The exact extent of these "unlawful" objects (other than crimes) is far from clear. A person remains liable to be prosecuted for conspiracy even if the object of the agreement has been achieved. The extended meaning of "unlawful" thus leads to the result that, so long as two or more combine, they can, in certain circumstances, be punished for doing something which would not be criminal if one of them alone had done it.

Mr. David Weitzman (Hackney, North and Stoke Newington)

The words my hon. Friend is seeking to delete are "conspiracy to rape". Clearly, that is a criminal offence. It is not the same as a conspiracy to carry out something which may be unlawful. If my hon. Friend pursues his arguments, he will fall foul of what was rightly said by the hon. and learned Member for Blackpool, North (Mr. Miscampbell)—that the law exists as it is. If a draft Bill is introduced to deal with conspiracy the rights and wrongs can be considered, but to alter the law now and delete those words would be utterly wrong.

Mr. Lee

I remind my hon. and learned Friend, whose experience in these matters is longer than mine, that the whole concept of conspiracy to rape can be and generally is a complete nonsense. At best, the words in the clause are otiose. At worst, they are an absurdity as well as a further recognition of what in my submission, and I hope in my hon. and learned Friend's submission, is a profoundly objectionable attribute of English law. One of the peculiarities about conspiracy is that two or more persons can commit the offence by doing acts which, if done singly, would be lawful or at worst tortious. One wonders therefore, what value there is in this.

I now turn from the general to the particular. Rape cannot be committed, cannot exist as an offence, unless and until the victim has said and meant "No". We have not attempted, even in this Bill, to reverse the decision in Morgan v. Director of Public Prosecutions. That piece of oppressiveness has at least been spared us. Therefore, the victim must have said "No" in a way which, it can be proved, beyond reasonable doubt, the pursuer must have known was meant, or behaved in such a manner that the defendants could be left in no doubt of the victim's refusal. After all, sexual relations, whether consensual or not, are not always conducted with strict formality.

How can there be an offence of conspiracy to commit rape if a number of persons consort with one another in a certain way? One may have decided views about the unpleasantness of the circumstances and one may have a low opinion of their moral attitude. But what is needed is something more than internal mental intent but less than an act directed against the intended victim. What they are consorting together for in this context is to have sexual relations with somebody. There may have been a horrifying example in the Central Criminal Court this week. I am not trying to make light of the matter. I am trying to prevent innocent people being victims.

Mr. Weitzman

The example my hon. Friend has given is absurd. If a number of people agree to rape a girl, there is a criminal offence. If they merely agree that sexual relations shall take place in some lesser degree, it is a matter for the judge and jury to consider. It is a question of degree. My hon. Friend must not confuse the issue in this absurd way.

Mr. Lee

My hon. and learned Friend is wholly wrong. It is not a matter of degree. Either the offence is committed or it is not. There is no grey area under the law. One does not commit a half offence. One may commit a different kind of offence or a lesser offence. There is a whole host of gradations of certain kinds of offence against the person, from common assault, through assault occasioning actual bodily harm, assault occasioning grievous bodily harm and assault under the Offences Against the Person Act 1861 all the way up the scale to attempted murder. But that does not apply here.

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

The hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) is partly right. I think that what he is saying is that conspiracy to rape, if it were ever indicted, is an agreement between two or more parties that they propose to rape a certain person, whereas aiding and abetting and inciting to rape is a somewhat different charge. But what the hon. Member for Birmingham, Handsworth (Mr. Lee) is entitled to ask the Government is whether they know of any case in recent years in which people have been indicted for conspiracy to rape. Those of us who have many years' experience have not seen such an indictment, probably because it would be conspiracy to commit an offence, whereas in almost every rape case there has actually been the rape, which distinguishes it from other conspiratorial cases.

Mr. Lee

I am very much obliged to the hon. and learned Gentleman. That is the whole point of the matter. Where the case stays as a conspiracy, it is unprovable. No doubt there are unhappily cases where people of a positively sadistic and perverted attitude consort among themselves and in the privacy of their own meetings say "We'll rape a young girl", although I am not sure how one would prove it. But the great majority of the cases that present themselves are ones in which people are conspiring to commit a sexual act. The element of rape arises, if it arises at all, only when they waylay the girl concerned. When that happens one is faced with a substantive offence—an attempt to commit rape or, if the offence is completed, rape. Therefore, the law is an absurdity.

2.0 p.m.

There could be a situation in which, following suspicion of activity by a group of youths, or indeed older men, deciding together to embark on an offence of this kind, somebody listening in with the aid of a tape recorder could be present while such a matter was being discussed and where there was a possibility of the commission of a sexual act of a non-consensual character with a victim.

In those circumstances it is possible that evidence could be produced on which a jury, properly directed, would convict of a conspiracy to rape. In such circumstances it would be possible for the defendants to say "We meant it all as a joke. We did not do it because we did not mean it seriously". In that situation it would be difficult for a judge to direct a jury in any other direction than that it would be unsafe for that jury to convict.

That is not the same as a situation of a murder without the body—in other words, where somebody disappears in circumstances where everything points to murder. The courts are reluctant to convict in such cases, but they can convict and have done so. That is not a properly analogous situation.

There is another reason why we should seek to delete this provision. The Bill names a number of offences as being rape offences and, although the wording of Clause 6(2) speaks only of "conspiracy to rape" rather than of conspiracy to commit a rape offence—I suspect that this is another piece of loose drafting—there would be further difficulty in deciding whether a conspiracy could apply where the so-called conspirators were seeking perhaps to commit no more than an act of indecency. That is one of the matters that is defined in an earlier part of the Bill as a rape offence.

The situation is not confined to rape. In the situation of somebody having listened in to such a conversation with the aid of a tape recorded, I suppose that there could be a conspiracy to attempt to commit a rape. Indeed, so far as I can see, there can be conspiracy to do almost anything—in other words, people can conspire at large. How will the law, as amended, apply to acts against public decency or outrages against public morals? I notice that there is a redefinition in the Bill of what used to be offences against public morals falling within the Vagrancy Act 1824. There are certain loose ends with which we must deal.

I turn to the objections raised by the hon. and learned Member for Blackpool, North. He will know that the report of the Law Commission has been in existence since 17th March, but nobody so far has indicated when the draft Bill is to be introduced, if at all. Judging by the legislative log jam which is likely to prevail in the coming parliamentary Session in face of the devolution measures, the measure related to elections to the so-called European Parliament—that peculiar Common Market thing—and a measure to tidy up companies law, we shall have a very busy legislative time on the Floor of the House. Obviously, constitutional measures have to be dealt with on the Floor and that will take a long time. Therefore, the prospect of an early tidying up of the conspiracy and criminal law reform legislation is somewhat remote.

Although the law in that respect is badly in need of revision, it cannot be said that we shall have an early end to that situation. By way of analogy, any attempt to change the composition of the other place often meets a certain degree of opposition—

Mr. Deputy Speaker

Order. For the fourth time, I must ask the hon. Gentleman to keep to the sense of his amendment.

Mr. Lee

Perhaps I had better leave their Lordships where they are for the moment. I was seeking to point out that these provisions are undesirable for many reasons.

Mr. Rees-Davies

Unfortunately, the Minister was not in his place when the hon. Gentleman invited him to say whether in the records of the Home Office there was any case at all in recent years involving a charge of conspiracy to rape. When there is not a participation, that can only arise as a separate charge. If there is a participation, it would either be joint rape, aiding and abetting rape, or inciting rape as an observer encouraging the offence. The Minister might like to intervene to say whether we are seeking to deal with something that is never likely to occur.

Mr. Lee

I am obliged to the hon. and learned Member for Thanet, West (Mr. Rees-Davies). For the moment I had forgotten that point. He is quite right. I suspect that the circumstances in which that type of offence occurs are extremely rare. I dare say that the Home Office has various bits of information winging towards the Minister and that he will be able to answer the point in due course. I suspect that charges involving a conspiracy to rape are as rare and would be as difficult to prove as, for example, the offence of attempted manslaughter. Whoever hears of a charge of attempted manslaughter being preferred in an indictment? The charge is either manslaughter or some lesser offence under the Offences Against the Person Act 1861.

As the hon. and learned Gentleman rightly points out, we have here a situation in which the offence is complete, in which case rape is charged, or it is not complete, in which case attempted rape is charged. Where more than one person is involved and it is such as to amount to a joint enterprise, the substantive offence can be charged. There have been many instances, very properly, in which more than one person has been jointly charged with a substantive offence, because they have all been guilty, either directly or constructively. The law is perfectly adequate to deal with this situations without the complexities and wire crossings of the law of conspiracy.

There are other objections to the law of conspiracy and the Minister knows of them. It is true to say that the law of evidence on what is admissible with regard to any one defendant are much more lax in a conspiracy charge than they are with regard to a substantive offence. A number of matters which should be regarded as coming within the hearsay rule in relation to a substantive offence are not so regarded in a conspiracy charge and can be put before a jury. Although one can understand why —because the whole essence of conspiracy is that it is a plural offence—there is bound always to be difficulty.

A well-known illustration of this, to those of who know the courts, occurs time and again, and is said with absolute sincerity, when the judge addresses the jury. I am sure that in many cases it is totally artificial and unintelligible to a jury. A judge will say to a jury, "What Mr. Snooks says when he is interviewed by the police is evidence only for or against Mr. Snooks and not Mr. Soaps. What Mr. Soaps says when he is interviewed by the police is evidence only against Mr. Soaps because Mr. Snooks was not present when Mr. Soaps was interviewed and Mr. Soaps was not present when Mr. Snooks was interviewed."

2.15 p.m.

I am sure that many juries listening to this regard it as mumbo-jumbo. In any case, they hear what is said. If one defendant says about the other something which is injurious or damaging, jury members probably shrug their shoulders and say, "It is all a game made up by the lawyers." That is difficult enough with a number of offenders tried jointly together on a substantive charge. In that case the judge is under a strict obligation to make those matters clear to the jury. One only hopes that the jury takes them on board. When the law of conspiracy applies, the same degree of stringency may not wholly apply. This is yet another reason why the invocation of the concept of conspiracy is something that ought, where possible, to be discouraged.

I look forward to the day—I do not suppose for a moment that the Minister of State will be able to name it this afternoon—when in one form or another the provisions of the Law Commission are implemented, not only as regards this Bill but over a very much wider area. I am sure—I would lay a bet with my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman)—that when my hon. Friend gets up to answer me he will not be able to give me the date when the Bill is to be introduced implementing those provisions.

If I am right about that, now is the time to start. Now we can go ahead and begin to make progress in putting right an aspect of the law which has worried politicians, libertarians, the National Council for Civil Liberties and judges. I know of a number of cases when judges have been rightly annoyed that conspiracy charges have been brought when it would have been perfectly adequate for the interests of justice to lay a substantive charge alone. If one may use the analogy of the "Shrewsbury Two" one of the causes of the furore there was that the substantive matters were left in limbo while the conspiracy count was pursued in the alternative. There is a worse situation than that.

Mr. John

I preface my intervention by saying that there are no recorded cases of conspiracy to rape. While I do not want to be taken to be assenting in any way to the general point my hon. Friend has been making, on the practicalities of the matter it must have little effect whether there have been such cases. I have consulted my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) and, with his agreement, I will invite the House to accept this amendment.

Mr. Lee

I am grateful to my hon. Friend and I will draw my remarks very shortly to a close. It is gratifying to discover that one's views prevail, at any rate in one way. If there are two matters pursued side by side it confuses the jury. The Minister understands that and accepts that it is another reason, possibly the most important one, for accepting the amendment.

This situation applies commonly in less serious matters, when a person is charged with careless driving, driving without due consideration, dangerous and reckless driving. He can be charged five or six times over for the same offence. Those are less serious matters than these but it is a highly objectionable situation. I am glad that the Minister has prevailed, behind the scenes, upon the sponsors of the Bill. It is bad to have a principle of cumulative charges in matters of this gravity.

My final objection is that the penalties on a conspiracy charge are at large. It is a little academic here because the maximum penalty for rape is so severe. At least it is defined.

In conspiracy matters, the penalties are at large, and that is not the least serious reason why the principle of conspiracy is bad. The principle of conspiracy in relation to this Bill is bad and, to the extent that even at this late stage the sponsors of the Bill are prepared to mitigate it by removing this objectionable aspect of it, I feel somewhat gratified.

Amendment agreed to.

Amendments made: No. 34, in page 9, line 10, leave out 'except section 5(1)(b)'.

No. 35, in line 12, leave out 'but' and insert: ',except that section 5(1)(b) and subsection (4)(b) of section (Anonymity of defendants in rape etc. cases) shall come into force on such day as the Secretary of State may appoint by order made by statutory instrument. (4A)'.

No. 36, in line 14, after '4', insert: 'and section (Anonymity of defendants in rape etc. cases)'.

No. 37, in line 22, leave out ') and except section 5(2)' and insert 'and subsection (1) of section (Anonymity of defendants in rape etc. cases) as adapted by subsection (4)(b) of that section)'.—[Mr. John.]

Motion made, and Question proposed, That the Bill be now read the Third time.

2.20 p.m.

Mr. Lee

It must be a strange situation when a Bill reaches its Third Reading and the persons who have committed their names to it have not a word to say on the subject, not even by way of a formal moving of the Third Reading. Indeed, I am minded to wonder whether a point of order arises, since the sponsors are not here formally to move the Third Reading, and whether the Bill will fall.

Mr. Deputy Speaker

I can put the hon. Gentleman's mind at rest on that point. Anyone may formally move Third Reading.

Mr. Lee

I am grateful for your guidance, Mr. Deputy Speaker. However, it is strange when those who believe in this Bill are not in their places to speak in support of it.

Miss Jo Richardson (Barking)

On a point of order, Mr. Deputy Speaker. I am one of the sponsors of the Bill and I am right behind my hon. Friend—I mean physically, of course.

Mr. Lee

I hope that my hon. Friend is behind me argumentatively, too. However, the proposer who has made all the song and dance about it all along is not here; nor are the more raucous supporters who manifested themselves at the end of the day when last this matter was considered.

I believe that this Bill is a bad one and that it will occasion a great many acts of injustice. I suspect that it arises out of a laudable but totally misconceived enthusiasm and that what has happened is that, quite rightly horrified by a number of genuine rapes that have occurred—and there have been some pretty horrible ones in recent years—they have allowed that enthusiasm to run away with them and, in common with a lot of people who allow their hearts to run their heads, they have produced a piece of legislation which, whether they like it or not, will endanger the liberty of a number of people.

One of the most disturbing aspects of the law—and it is one for which there is no answer under any legislation—is that by its nature it is an offence for which there are unlikely to be, except in the case of rapes committed by a number of persons, more than the victim and accused person present. Of their nature, sexual acts are not likely to be committed in public except in a Roman orgy and least of all when they may be of a non-consentual kind.

If that be the situation, it will always be difficult to find reliable, detached and independent corroborative evidence. By restricting the scope of cross-examination, as the Bill does in Clause 2, the dangers of wrongful conviction are bound to increase.

There are, after all, basically two defences in a rape situation. One is I did not do it, and it was someone else". The other is "She consented". The first must depend upon identification and, where the complainant and the defendant are unknown to each other—this will apply especially if the person is guilty but it may apply in other instances— all the hazards of identification will come in a renewed and intensified form. In other contexts in recent years we have had case after case of wrongful identification. In some cases people have languished in prison for years before being vindicated and then often only by accident. I am thinking not only of rape but of other situations, and it is only this summer that a series of cases have been quashed in the Court of Appeal because the Court of Appeal decided that the matters were such that they could not be relied upon.

I suspect that behind a lot of the people who are supporting the Bill—certainly the more silly and unthinking of them—is that, because they want to convict and punish people of rape, they want to bend the rules and make it easier to convict—never mind whether someone innocent is convicted. I suspect that that is behind the reasoning of the sillier of those who are sponsors of this Bill. It is a wholly deplorable situation in which the Home Office sits on the fence. It is an inelegant, unheroic and unhelpful posture which a Government Department ought not to have.

The record of the Home Office in matters of civil liberties, heaven knows, is undistinguished and has been under one Government after another. Its attitude of moral cowardice is almost as bad as that which it has shown in matters of race relations until quite recently. I suspect that when this Bill is through we shall have another example of it in relation to the licensing legislation—legislation which I support unenthusiastically. But I share with the objectors the feeling of scorn that the Home Office passes the buck to private Members to deal with these matters.

I cannot believe that if the principles involved in this Bill had emanated from a Government Department some of the obvious pieces of legislative carelessness and legal ambiguities which the courts will have to work out for themselves would have appeared in it. I have in mind the provision which we discussed earlier about crime by negligence, and the hon. Member for Burton (Mr. Lawrence) supported me in objecting to that.

I cannot believe that if this Bill had emanated from the Home Office we would have had the asinine provisions which are in it now. It took a lot of talking from me to drag out of the Home Office the deletion of the reference to conspiracy and to that extent the Bill has been improved minutely. I suppose that we must be grateful for small mercies because small mercies are the only ones that Back Benchers ever get, but the situation is still bad.

If, as was reported the other day, somebody makes accusations against other persons of a sexual attack and these accusations are unfounded, defence counsel should have the right to cross-examine on these matters. It should be no part of the duty of Parliament to hinder the right of cross-examination. Clause 2 is a fundamental intrusion on the rights of advocates before the court in protecting the liberty of the subject.

I only hope that when this Bill reaches the other place Peers will seek to change parts of Clause 2 for the better. If that happens, for once I shall be able to say something nice about the other place. Up to now I have always regarded it as a kind of anthropological zoo. However, if it can improve this Bill, it will serve a useful purpose. I hope it will not chicken out, as it did over the EEC legislation.

I expect that we shall have a very strange situation arising over publication. Any acquitted person who really wishes —one can think of instances where such a person will wish quite rightly to parade the name of the disbelieved accuser before the public—has his remedy in taking out a writ for malicious prosecution. That will be public news, printed in the papers and people will know all about it.

It is a very rare civil remedy and a very difficult one to pursue successfully to a conclusion, and there are many stages before a conclusion can be reached. However, one would not have to go that far with the action because the object of the exercise would be to get the name of someone in the Press, and it may well be that the perjuror would be exposed very early on. The wrongly accused person need take only a number of fairly preliminary steps in order to defeat the Clause 4 provisions.

There are of course instances—as in the case of juveniles—where, right or wrong, honest witness or dishonest witness, it is right for over-riding reasons of public policy that names should not be disclosed. That apart, I see no justification for Clause 4 in spite of he Minister's somewhat artificial examples which he sought to produce in order to rebut my amendments.

For the rest of the Bill there is very little to be said. One hopes that when Parliament passes a nonsensical piece of legislation such as this, the judges have sufficient ingenuity to whittle it down. There are, and I choose my words carefully, many people who say "Thank God for Lord Denning" in respect of civil law. One hopes that the criminal side of the Court of Appeal and the higher courts will show the same constructive ingenuity in mitigating the damage which could be done by this well-intentioned, but wholly misguided and silly piece of legislation.

If this Bill becomes law, a perjuror in a rape case may well be able to gain protection from public contempt and condemnation. A witness who gives evidence against a gangland murderer can have his name disclosed. I find it incredible that the Guardian felt prepared to give the name of a man held in a cell under constant threat of his life for giving evidence against some of the most dangerous criminals in this country. A newspaper which is so irresponsible that it publishes the name in that case will not be able to publish the name of a neurotic woman who fantasises about a rape. She can be protected, and for that reason I intend to divide the House.

2.38 p.m.

Mr. George Cunningham (Islington, South and Finsbury)

Earlier this week there was a very highly publicised rape case in which a number of people were convicted of the rape of a girl and one of them was acquitted because he was under the age of 14.

Mr. Lee

He was not acquitted.

Mr. Cunningham

He was acquitted of rape because under English law the presumption is that one cannot be convicted of rape under the age of 14. This is a very curious presumption which suggests that a boy under 14 is physically incapable of sexual intercourse. That is a prepostrous ground on which to assert that he cannot be convicted of rape.

I moved an amendment in Committee to remove that presumption but it was rejected. I hope that the House of Lords, particularly in the light of the case earlier this week, will see fit to look at that particularly silly presumption in English law which has no parellel in Scottish law and make an amendment to improve the law.

2.39 p.m.

Mr. Lawrence

My hon. Friends and I tabled the motion on the Order Paper on Third Reading in order to enable a public debate on this stage of the Bill and to air the broad nature of our misgivings about it so that the House of Lords, if it has time to consider the Bill at all before the end of the Session, might take note of what we have said.

Our criticisms are of substance but lest the hon. Member for Birmingham, Handsworth (Mr. Lee), who has laboured long and assiduously to stop this Bill, should feel that he must take the opportunity to make a party political point about not pressing our objections to a vote, I would say that this opposition has not been and never will be, in the remaining short time in which we remain in Opposition, opposing simply for opposition's sake.

Mr. Lee

Tell that to Maggie.

Mr. Lawrence

Our Opposition has always been responsible, and we are being responsible in this debate.

There seems to be no valid justification for delaying the next business even for 15 minutes. That time will be valuable for dealing with the next Bill, which is I believe relatively non-contentious. Because the Bill we are now dealing with will have to face further legislative proceedings, and since in due course the House of Lords may not have time to consider the matter and the Bill might lapse, there would be less justification for delaying it by irresponsible opposition, however strongly one might feel about parts of the Bill.

The Opposition's approach to the Bill can be summed up as unenthusiastic. Clause 1 defines the meaning of rape and is unexceptionable in that it is no more than a restatement of the existing law which with one exception changes nothing in the practice of the law. In a sense therefore it is unnecessary, and I only hope that the public are not led to feel that because we are passing a Bill amending the law of rape, in essence the definition has been changed to make the law more severe or to make it more likely that those accused are convicted.

The public outcry which caused the Heilbron Committee to sit and the Bill to be produced has tailed off because the Cambridge rapist was arrested, the Committee was set up and reported and a Bill is before the House. The public doubtless feels that in future all will be well with the law of rape because we are doing something about it here. My hesitation is that, like so much of legislation that we pass, the Bill is little more than a placebo, and where it may be thought to change the law in substantial respects it changes it very little.

The exception to the general principle that in definition the law is unchanged is in subsection (3). We see there a very serious danger in removing a qualification which hitherto existed that one cannot produce a charge of rape against the husband. There is a serious danger of the hateful and vengeful wife crying rape and using that as an excuse to rid herself of the unwanted husband. We have the strongest reservations on that score.

Clause 2 gives us strong misgivings if it is intended to make it more difficult for an accused person to be acquitted by placing restrictions upon the evidence which he can adduce at trials for rape. That is a potentially very dangerous proceeding, particularly since it applies different rules from those which normally apply in criminal cases. It takes the judgment about the relevance and strength of evidence away from the jury, which hitherto has had that power in rape cases, and concentrates it in the hands of a single judge, who may or may not be the fairest forum to decide that issue. If we thought that judges were always the fairest forum to decide these issues of fact we would not have had juries at all. As has become clear during the Committee proceedings, we have considerable hesitation about the loss of this right to adduce evidence.

We have further misgivings about Clause 4, particularly in so far as the defendant has to be protected by the cloak of anonymity. Of course, we see the logic of protecting a defendant if the complainant is protected, but many of us would rather that there was no protection for either party. We genuinely view with some disquiet the fact that we are introducing here an element of private justice not open to the usual public scrutiny into a branch of the law which in other respects ought to vary little from the general principles of our criminal justice.

2.45 p.m.

Our approach to the Bill is concerned that the usual safeguards which apply in our criminal law for protection of the accused are to some degree being undermined here and that although the public may feel that it is a good thing to legislate again on rape and may feel that some of the steps in the Bill improve the law, it is doubtful whether, if the public fully understood all the parts of the Bill, it would wholly like all the fetters being placed upon the accused which may well make the conviction of an innocent man more likely.

The usual safeguards which have satisfied the public over the years and have not been subject to the greatest criticism —the burden of proof being upon the prosecution, the judge's power to decide whether cross-examination is relevant, the fact that juries are the judges of issues of fact, and the fact that special rules to protect the accused are written into our law—are here being reduced to some extent.

Experience has shown that some women have a propensity to make false allegations in some circumstances. Since these allegations are easily made and difficult to disprove, the law has always paid a special regard to sexual offences and has required, for example, corroboration. We are unhappy that the Bill reverses that approach. Instead of giving extra care to the protection of an accused in a sexual offences case, the sponsors of the Bill have deliberately and intentionally in some respects reduced the need for care.

We therefore consider that this is a very substantial danger because it might result in some being unjustly convicted.

We shall not vote against the Bill, as I have explained, but I hope that these matters have been registered so that the other place may consider them more fully. The Upper House in a matter of this kind is a pre-eminent institution for considering changes in the law. It consists of a very large number of experienced and wise practitioners in this branch of the law. They have the time and the opportunity to consider the details and the principle much more fully than perhaps we have in this Chamber.

Although we do not agree wholly with the conclusion of the Heilbron Committee, we pay a substantial tribute to its work and I congratulate the hon. Member for Hemel Hempstead (Mr. Corbett) and his fellow sponsors on having produced this Bill. I hope that before it is dealt with in another place there will be further improvements.

Some of us, however, on this side expect that this Bill will never see the light of day because of the weight of the legislative programme and that it will go the way that the Road Traffic (Seat Belts) Bill seems likely to go and not return here this Session.

2.51 p.m.

Mr. John

I intervene for a few moments because it would be wrong not to congratulate my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) and all the sponsors who have done a magnificent job during all the stages of this Bill to set it on its way. It may not be a tremendous earth-shattering measure, but it will be extremely useful in clearing up misconceptions which may arise and it will make what has become trial by ordeal for many women with a legitimate cause for complaint an ordeal in which they have to suffer only that which is necessary for the trial of the offence and not an ordeal of extraneous matter and public opinion.

The hon. Member for Burton (Mr. Lawrence) spoke about his anxieties on Clause 1(3). He will know that this provision was deleted on Report and I hope that he will agree that the record should be put straight so that no undue alarm is caused.

My hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) raised the question of age. This is being considered by the Criminal Law Revision Committee, assisted by the Policy Advisory Committee on Sexual Offences. I think that is the best way of dealing with the matter.

I should tell my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) that the Home Office welcomes the Bill. It is not sitting on the fence and nor does it believe that the Bill is a product of emotion. It is a product of the Heilbron Committee and if it is right to pay high though not unquestioning tribute to the depth of its investigation and conclusions, it is right not to praise it on the one hand and denigrate it by rejecting its conclusions on the other. It is because the Bill gives just treatment to the recommendations that I hope that the House will give it a chance to proceed further.

Question put, That the Bill be read the Third time:—

The House proceeded to a Division—

Miss Jo Richardson and Mr. Robin Corbett were appointed Tellers for the Ayes, and Mr. John Lee was appointed a Teller for the Noes, but no Member being willing to act as a second Teller for the Noes, Mr. DEPUTY SPEAKER declared the Ayes had it.

Bill accordingly read the Third time and passed.

Back to