HC Deb 19 July 1977 vol 935 cc1396-404

4.9 p.m.

Mr. Jack Ashley (Stoke-on-Trent, South)

I beg to move, That leave be given to bring in a Bill to amend the law relating to rape and sexual assault; and for connected purposes. The purpose of the Bill is to give the prosecution the right of appeal on sentences in cases of rape and other sexual offences. At present we have a one-way system. A sentence can be reconsidered on appeal only when the defendant requests it. The prosecution cannot make such a request, yet excessive leniency is as damaging as excessive severity. The one affects society and the other affects the individual, and they should both have the right of appeal. This right should apply to the whole of our law, but my Bill is confined to rape and other sexual offences because rape is a singular crime requiring particular attention, and because of the attitude of some of the judiciary.

Public support for the judges is vital and we must ensure an independent judiciary, particularly one that is free from parliamentary control. But the worst enemies of an independent judiciary include some of its own members. Some of their pronouncements and sentences have provoked a storm of protest from all sections of the community. The judiciary has left itself open to a charge of discrimination against women which leads to injustice in cases of rape. It is that which brings the law into disrepute and which raises serious questions about judicial attitudes towards rape and other sexual offences.

I do not propose to criticise any particular judge, but the House must evaluate for itself how the law is operating. I state, without comment, that it has been said by a court, It is well known that women in particular, and small boys, are liable to be untruthful and invent stories". Again, I state without comment that a man guilty of raping two women at knife-point was set free, so recently was a guardsman guilty of a violent sexual assault. It was the Court of Appeal which made that latter judgment mainly because it thought that a prison sentence would damage the man's career. But men throw away their careers with their humanity when they embark on crimes of sexual violence. The court said that the man allowed his enthusiasm for sex to overcome his normal good behaviour and he was allowed to go free. But the men involved in the great train robbery allowed their enthusiasm for money to overcome their normal good behaviour and were sent to gaol for 30 years. The discrepancy in those sentences is eloquent testimony that a change in the law is urgently called for, not least because the Court of Appeal influences the sentencing policy of all courts.

Figures given by the Lord Chancellor reveal that in 1975 of 328 men found guilty, only 47—that is 14 per cent.—received more than five years' imprisonment; four men received less than six months; and over a quarter, 87–26 per cent.—were not imprisoned at all—and that for the grave and violent crime of rape. The Lord Chancellor then made the straight-faced comment: The courts do not shrink from imposing heavy sentences. The problems are not simply those of a few well-known cases, nor of the attitudes of a few judges. The problem lies in the whole sentencing policy for rape and sexual offences and the attitudes which have permeated every level of the judiciary. It is that kind of discrimination which disfigures British justice in cases of rape; and it is based on historical, cultural and psychological factors which express masculine codes in our society. Consequently, the law is used as an instrument for perpetuating outmoded values, whereas it should be used to reflect the new role of women, to codify changed opinions about them, and to operate as an instrument of change—as it has begun to do in legislation such as the Equal Opportunities Act.

The need to give the prosecution the right of appeal has been debated for decades and is at present under review by the Criminal Law Revision Committee. But this is an issue on which the House should express its own view. The Donovan Committee rejected this idea. It said that it was logical, but a complete departure from our tradition. That was an incredibly flimsy basis for denying a review where miscarriages of justice are suspected.

It has been argued that there are few cases where excessive leniency is shown in British courts. This may or may not be so generally, but the figures I have quoted show that it is commonplace in cases of rape. But, in any event, numbers are irrelevant to the principle involved. Judges, because they are human, must make mistakes. Respect for judges does not entail acceptance of the bogus doctrine of judicial infallibility.

The provision for an individual to appeal is important, but it is not less important a provision for society as a whole because the consequences to women, and therefore to society, are too grave to permit judicial errors or excessive leniency to go unchallenged. The right of appeal of the prosecution is already firmly established in other countries including France, West Germany and Holland. Apparently we are not to have it because of hallowed tradition. But we should not allow archaic practices or outmoded values to interfere with the administration of justice. Rapists, or men guilty of vicious sexual assault, should not be allowed to take sanctuary in the hide-out of tradition. They should be treated with justice—no more and no less. And when justice is not done or is not seen to be done, society should have the same right of appeal as the criminal.

4.18 p.m.

Mr. Nicholas Fairbairn (Kinross and West Perthshire)

I beg to oppose the Bill.

I pay tribute to the sincerity of the hon. Member for Stoke-on-Trent, South (Mr. Ashley), who introduced it, and I merely wish to say that he operates from a variety of misconceptions.

I declare both interests and lack of them. I operate under a different system of law and this Bill would not affect me. I have the good fortune to operate under a system of law that has not been plagued by the absurdity of the Sexual Offences (Amendment) Act, which demonstrates the impossibility of putting common sense and reason into statute.

I operate also as somebody who has appeared in hundreds of cases involving sexual assault. Therefore, I hope that I may be able to speak with some authority on the subject. Lest it be suggested that any man or any lawyer has some prejudice against women, may I declare another interest. Nobody is fonder of women than I am.

I approach the subject from that basis, and I think that it is a fantasy that is in the hon. Gentleman's mind that there is some outdated hostility to women. A phrase he used seemed to demonstrate all the frightful archaic attitudes to women and of chauvinism that have ever existed. He spoke of a male enthusiasm for sex—as though women hated it, did not want it, wanted to take no part in it, but were compelled to do so in marriage.

Mr. Tom Litterick (Birmingham, Selly Oak)

They do not want to be raped.

Mr. Fairbairn

Indeed they do not. However, rape differs from all other offences in the calendar of crime in that it involves actis criminis that is normal to people and is sought after by people, men and women. People do not normally steal, lie or indulge in corruption or fraud, but they do normally seek after sex as a matter which they wish, and so it is a very different crime.

Like the crime of culpable homicide in the Scots calendar and manslaughter in the English calendar, rape can cover a wide range of cases. Rape cases range from, at one end of the scale, the case of Valerie Storey whose consent and co-operation was obtained at gunpoint. In this case, the assault was enlarged by a sexual content of the worst kind and merited condign punishment. If Hanratty deserved to be hanged, it was more for the second offence. At the other end of the scale, I have known frequent cases of women charging with rape men with whom they live.

Why does a woman say that she has been raped? There may be many reasons. She may have been raped, she may be feeling contrition at having gone further than she intended, she may be a young girl who gets home late and finds her mother waiting to ask where she has been or a wife whose husband wants to know what she has been doing. Once the word rape has escaped from the lips of the woman, for whatever reason, it is an admission that, whatever else she did, she had intercourse and she cannot go back on it.

From my experience in hundreds of cases, I know that when the word rape has been mentioned, far from treating the inquiry in a chauvinistic fashion, policemen take steps far in excess of their normal diligence to investigate the truth and to ensure that if a woman has been raped, the charge can be substantiated. In my experience, the Bench leans over backwards to protect the women or children in the witness box and it is almost impossible to cross-examine them as one would cross-examine a male.

The hon. Member for Blyth (Mr. Ryman) prosecuted in a rape case in this country last week in which there was an all-female jury. In contradistinction to what the hon. Member for Stoke-on-Trent, South said, when I have defended cases in which my client was seeking to establish that a woman or a child was not telling the truth, I have always tried to get women on the jury. It is not a matter of male chauvinism, but women know that women do not always tell the truth. Men prefer to think that they always do. The same is true with children. That is why I have always preferred women on a jury because they know that they are not dealing with a species that is so saintly as to be inevitably perfect.

It is important that the channel along which the law in England has been travelling should stop. In Scotland we have the benefit of the common law. It is interesting to note that of all the offences in the calendar of crime, rape and sexual offences are the only offences that have been consistently falling over the past 10 years, and they are the only crimes that excite hon. Members opposite to ask for greater sentences.

It is important to remember that in any case of rape there are so many variants and differences that to criticise a judge or judgment that is selected for some reason is a very dangerous proposition. There is no right for the Crown to appeal against a sentence in any crime—for a very good and proper reason. When a person has been brought to trial, found guilty of an offence and sentenced, that is the process of the law. The process should not be continued beyond that.

It was because there was an appeal that the hon. Member for Stoke-on-Trent, South has a complaint. There was an appeal by the defence in the case to which he referred. If there had been no appeal, the hon. Gentleman would have had no complaint. When a person is found guilty of an offence and sentenced, that is the extent to which the law should go unless he cares to challenge it—and that should be the case with rape, parking or any other offence.

The emotion involved in the sexual content of rape should not be allowed to disturb principles. Hon. Members would do well to remember that rape involves an activity that is normal. Hon. Members should remember the words of Ovid—and I translate them into English for those who do not know Latin: Whether they say yes or no, they all like to be asked. And, saying she would never consent, she consented. It is part of the business of men and women that they hunt and are hunted and say "Yes" and "No" and mean the opposite. If it is misinterpreted, let a jury decide whether it was reasonable to

misinterpret it. Let us not change the law because a sentence in a case appears to an outsider to have been inappropriate. In any event, it was a sentence that was made inappropriate by the lunacy of the Committee on the Criminal Law Bill and the Criminal Justice Act that preceded it.

Let us take the emotion out of this subject. We have no difficulty in Scotland. We have the common law, we can apply it, we understand it. If it is a bad assault, there will be a heavy sentence. If a man takes a girl out and she consents and afterwards retracts or feels contrition, there will be a small sentence, if any. As an outsider to the law of England, I beg the House not to pass the Bill.

Question put, pursuant to Standing Order No. 13 (Motions for leave to bring in Bills and nomination of Select Committees at commencement of Public Business):—

The House divided: Ayes 52, Noes 114.

Division No. 201] AYES [4.28 p.m.
Allaun, Frank Ennals, David Perry, Ernest
Ashton, Joe Evans, Fred (Caerpillly) Reid, George
Bain, Mia Margaret Evans, Gwynfor (Carmarthen) Sillars, James
Boothroyd, Miss Betty Farr, John Smith, Cyril (Rochdale)
Brown, Ronald (Hackney S) Fletcher, Ted (Darlington) Stallard, A. W.
Buchanan, Richard Foot, Rt Hon Michael Stott, Roger
Callaghan, Jim (Middleton & P) Hatton, Frank Taylor, Teddy (Cathcart)
Canavan, Dennis Janner, Greville Wainwrlght, Edwin (Dearne V)
Carter-Jones, Lewis Lipton, Marcus Wainwright, Richard (Colne V)
Castle, Rt Hon Barbara Loyden, Eddie Weetch, Ken
Coleman, Donald MacFarquhar, Roderick Welsh, Andrew
Conlan, Bernard Mikardo, Ian Wigley, Dafydd
Cowans, Harry Miller, Dr M. S. (E Kiibride) Wilson, Gordon (Dundee E)
Crawford, Douglas Morris, Alfred (Wytnenshawe) Woodall, Alec
Crowmer, Stan (Rotherham) Morris, Charles R. (Openshaw)
Dempsey, James Ovenden, John TELLERS FOR THE AYES:
Dormand, J. D. Palmer, Arthur Mr. William Molloy and
Dufly, A. E. P. Pavitt, Laurie Mr. Robin Corbelt.
Edwards, Robert (Wolv SE) Pendry, Tom
Atkinson, Norman Douglas-Hamilton, Lord James Jessel, Toby
Baker, Kenneth Dunwoody, Mrs Gwyneth John, Brynmor
Banks, Robert Dykes, Hugh Jopling, Michael
Bates, Alf Edge, Geoff Kaberry, Sir Donald
Bean, R. E. Ellis, John (Brigg & Scun) Kerr, Russell
Bell, Ronald Ewing, Mrs Winifred (Moray) Kinnock, Neil
Bennett, Andrew (Stockport N) Faulds, Andrew Lamond. James
Bennett, Sir Frederic (Torbay) Fernyhough, Rt Hon E. Lamont, Norman
Boscawen, Hon Robert Finsberg, Geoffrey Latham, Arthur (Paddington)
Brittan, Leon Fletcher, Alex (Edinburgh N) Lester, Jim (Beeston)
Brooke, Peter Fry, Peter Litterick, Tom
Buchan, Norman Goodhart, Philip Lyon, Alexander (York)
Burden, F. A. Gray, Hamish MacFarquhar, Roderick
Butler, Adam (Bosworth) Grieve, Percy MacGregor, John
Carlisle, Mark Grimond, Rt Hon J. Marshall, Jim (Leicester S)
Cartwright, John Grist, Ian Maynard, Miss Joan
Clarke, Kenneth (Rushcllfe) Grocott, Bruce Miller, Hal (Bromsgrove)
Clemitson, Ivor Hamilton, Michael (Salisbury) Miscampbell, Norman
Cocks, Rt Hon Michael Hardy, Peter Mitchell, Austin Vernon (Grlmsby)
Cook, Robin F. (Edin C) Hayman, Mrs Helene Mitchell, R. C. (Soton, ltchen)
Corrie, John Heffer, Eric S. Monro, Hector
Costain, A. P. Hunt, David (Wirral) Morrison, Hon Peter (Chester)
Crawshaw, Richard Hunter, Adam Mudd, David
Crouch, David Jenkin, Rt Hon P. (Wanst'd & W'df'd) Murray, Rt Hon Ronald King
Newens, Stanley Roper, John Thomas, Rt Hon P. (Hendon S)
O'Halloran, Michael Ross, Stephen (Isle of Wight) Thorne, Stan (Preston South)
Onslow, Cranley Royle, Sir Anthony Thorpe, Rt Hon Jeremy (N Devon)
Osborn, John Ryman, John Walker, Rt Hon P. (Worcester)
Pardoe, John Sandelson, Neville Walker, Terry (Kingswood)
Parry, Robert Selby, Harry Walker-Smith, Rt Hon Sir Derek
Penhaligon, David Shaw, Arnold (Ilford South) Ward, Michael
Price, C. (Lewlsham W) Shersby, Michael Watkinson, John
Price, David (Eastleigh) Silvester, Fred White, Frank R. (Bury)
Rathbone, Tim Skinner, Dennis Whltelaw, Rt Hon William
Renton, Rt Hon Sir D. (Hunts) Smith, Dudley (Warwick) Young, Sir G. (Ealing, Acton)
Renton, Tim (Mid-Sussex) Snaps, Peter
Richardson, Miss Jo Steen, Anthony (Wavertree) TELLERS FOR THE NOES:
Ridley, Hon Nicholas Stoddart, David Mr. Nicholas Fairbairn and
Rlfkkid, Malcolm Taylor, Mrs Ann (Bollon W) Mr. John Lee.
Rooker, J. W.

Question accordingly negatived.