HC Deb 05 March 1998 vol 307 cc1275-84

Motion made, and Question proposed, That this House do now adjourn.—[Jane Kennedy.]

8.52 pm
Mr. Dale Campbell-Savours (Workington)

You will know, Mr. Deputy Speaker, that this a particularly difficult issue to raise. Members of Parliament do not usually stand up in the Chamber and allow themselves to be identified with those who would seek to defend a man successfully prosecuted for the offence of rape. What I say here this evening could easily be misrepresented.

I take that risk because I believe that someone must speak up on this case. Arising out of the Oyston trial, I see the danger of future miscarriages of justice, where cases are badly investigated, men are charged with rape and juries convict on the basis of uncorroborated evidence in closely contested cases. I am talking about convictions in the complete absence of medical or scientific support.

This debate is about the case of the rape of a 16-year old girl by a 57-year-old man. I am arguing that the case raises issues of public policy and natural justice. I want it to be referred to the Criminal Cases Review Commission.

This was one of a series of six such allegations made against this man. A magistrate found no case to answer in three of the cases. A Crown court acquitted him in two. The allegations, which a jury upheld, were that the man indecently assaulted a young woman, whom I will call J, in the back of a car in the presence of two other passengers, one of whom was her friend. Twenty minutes later, J alleged, he raped her in his own bed in his own home. Both allegations were challenged by J's friend Lysa Rubotham, who was in the car and in the bedroom.

I have met Mr. Oyston on two occasions. The first time was in 1988 when, following allegations by a Conservative Member of Parliament about his activities in Derbyshire, I met him in a hotel in my constituency to confront him with the allegations. I conducted my own inquiries, which included interviewing people in Derbyshire. The allegations proved unfounded.

I then presented Mr. Peter Carter-Ruck with a file of papers that had come my way from a number of sources. Those papers were, I believe, used in a successful libel case. My activities included tabling an early-day motion, which proved a considerable embarrassment to Mr. Oyston. I did so in the belief that I was acting in the public interest. Allegations had been made that were damaging to the Labour party and, as far as I was concerned, someone had to investigate.

On the second occasion in 1995, Mr. Oyston asked to meet me in the House of Commons and told me that he was the subject of a conspiracy—his words. He was being prosecuted for rape. I could not comment on the issue of conspiracy—I have no knowledge of those matters. He told me that he had been very stupid, an admission he was subsequently to make in the course of his trial. He also told me that he had been having sexual relationships with young women. He seemed to me to be admitting that he had taken advantage of his position as a media tycoon. During the meeting, I spoke to his lawyer on the phone and told him that I was not prepared to take any action, because I believed that the matter was sub judice. However, I did state that I would like to be kept informed of developments because of my previous inquiries in the late 1980s. I have now read much of the evidence in this case, including sworn statements to the police and affidavits in relation to the new evidence. I have also read the available transcripts of both trial and appeal.

The question is whether a charge of rape should have been brought against Owen Oyston. Oyston admits that he took advantage of young women. The House will deplore such conduct, and I find it unspeakable—but such is life. We have never legislated to make such relationships illegal, although some hon. Members may want to. However much we might condemn such behaviour, it is not a criminal offence, whereas rape is a particularly serious and nasty offence.

Did a change in the law on rape, five days before Oyston was charged, prejudice his trial? I have often asked why that change was introduced only five days before he was charged and whether there was a connection. A rule that had obliged judges to warn juries about the dangers of convicting on the uncorroborated word of one complainant in a rape case had been abolished. In 1993, the then Home Secretary said that it had to go. He said that it was outdated and demeaning to women, particularly in rape cases. I believe that that rule change was critical to the Oyston trial.

The danger of the change was outlined by Baroness Mallalieu in some detail, on Second Reading of the Criminal Appeal Bill 1995 in the House of Lords. Indeed, I am informed that, in north-west England, at least six other rape cases since 1995 have resulted in what has been described as grotesque and disastrous injustice, involving the suicide of innocent people and the gaoling of others who have made false allegations. Because of shortage of time, I have been unable to examine the detail of each of these cases.

In the case against Oyston, the prosecution brought an uncorroborated allegation of rape. However, the defence produced an eyewitness, Lysa Rubotham, J's friend—the other woman in the car whom the Crown acknowledged to have been present. I have interviewed this woman. During an interview at my home four weeks ago, she told me that she believed that an injustice has been done. She insisted that no assault had taken place in the car in which she was travelling, and that no rape had taken place in the house that the two girls had visited.

The case hinged entirely on the credibility of the two women witnesses. Both the Crown and the defence agreed that the two women had been present in the defendant's home on the only occasion when an offence could have been committed. Lysa Rubotham believes that J lied to the court. She told me that she would believe for the rest of her life that an injustice has been done. In my home, she openly wept over her failure to be believed in the court.

No other material evidence was available to the defence or the jury, as J could not say in what precise part of any year, season or month any offence had been committed. Most remarkably, she allowed two whole years to pass before she revealed to anyone that the rape had taken place.

Did the police, in the gathering of evidence, act as even-handed investigators? The first police interview notes in the case are now missing. Summing up for the defence in the Oyston trial, Mr. Anthony Scrivener said that Lysa Rubotham, who was questioned on 24 occasions, was asked only once—informally and on the telephone—about J's allegation. Scrivener said: It does not require a great brain to realize in the circumstances that Lysa Rubotham must be an important potential witness. She was never asked to make a statement about it. Obviously a material witness—and when she was asked she indicated to the police that she would not be corroborating the police's version of it and so the police felt that it was not necessary to make a statement. Another important question is whether the witnesses were treated equally. Why was J given anonymity, whereas the character of the only other eye-witness, Lysa Rubotham, was torn to shreds before the jury? Was article 6(3)(d) of the European convention on human rights breached? Under that article, everyone charged with a criminal offence has a right to examine or have examined witnesses against him and obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. As the complainant in a rape case, J was granted anonymity and protected from certain lines of cross-examination under section 2 of the Sexual Offence Act 1976. She could not be asked about her sexual and personal life. No such protection was afforded to Lysa Rubotham, whose evidence directly contradicted the evidence of J. Miss Rubotham was cross-examined in the way that rape complainants used to suffer in the days before the 1976 Act. That could hardly be described as examination "under the same conditions" as described under article 6.

Lysa Rubotham was named. Her home address and carefully selected photographs were published in many newspapers. As she feared, she was forced by the Crown to reveal details of her youthful promiscuity. She was portrayed in newspapers after the trial as a liar and a loose woman. After she had admitted having a sexual relationship with the defendant, she was asked by Mrs. Helen Grindrod, for the Crown, to say whether she had had promiscuous sexual encounters, at the age of 17, with four business men, who were all named in open court.

The questioning was designed to demonstrate that, although Lysa Rubotham was a friend and colleague of the complainant, she was promiscuous and might have a stronger loyalty to the defendant and be prepared to lie on oath for him.

The trial judge told the jury that one of the two witnesses must have lied to them. He also told them that their resolution of the conflict of evidence was central to the question of guilt. Since the two contradictory witnesses were not examined "under the same conditions", as required by the European convention, the jury could not weigh accurately the evidence of one young woman against the evidence of the other young woman.

Many people in Lancashire believe that the defendant was denied a fair trial. My view is that, if each of the witnesses had been treated in the same way, the jury might well have come to a different verdict.

I received a letter from a woman in Silverdale in Lancashire. It says: Re: Owen Oyston. Dear Sir, I have been interested to read that you, as I am myself, are greatly concerned at the misjudgment used in the above case and are willing to help to right an obvious breach of what is fair in: The way the case was conducted. The biased questioning of participants. The length of the sentence handed out. The obvious bias of the policeman involved, whose comments were totally unacceptable on television. I confess that I was unaware of those matters. The sending to Garth prison of a man who has never been involved in violence. One of the prisons used for the worst type of offender. This man, whom I have never met, has obviously upset people in high places. I can only conclude that what has happened to him is as the result of a deliberate conspiracy. Please join with me in righting this wrong and bring it to the notice of Parliament. The letter was signed.

I do not want to comment on any conspiracy theories, but I thought that that letter was an indicator of the opinion of many people in Lancashire who have been following the case, and I thought it appropriate to read it to the House.

There is one aspect of the preparation of the case against Owen Oyston that I find particularly disturbing. Why was the evidence of the appalling and chronic abuse of drugs not adequately researched or considered by the police, the Crown Prosecution Service, the Crown court, or even the Court of Appeal? At one trial, J was formally given immunity from prosecution for past drug abuse. However, the police did not carry out a full inquiry into her heavy use of amphetamines, Ecstasy and cannabis. This was a woman whose memory of events, late one night four years earlier, would be so vital to the jury at the trial of Owen Oyston.

The question is whether courts should be allowed to rely in rape trials wholly on the evidence of those who have repeatedly used drugs. I note that, once again in our legal system, three Court of Appeal judges have been able to reject a mass of new evidence—some of which has recently been drawn to my attention—gathered in a man's defence after his conviction, but unavailable to his lawyers or to the jury in his trial.

As I have said, raising a case of this nature is very difficult for a Member of Parliament, but I feel very, very strongly that something is wrong, and that the truth has got to come out. A barrister recently said to me that the Oyston trial had implications for the whole of the law on rape. Something, somewhere, is wrong. The law is being brought into disrepute. I can only foresee great injustice being done in the future, unless we again review the law.

Before his trial, Owen Oyston was told by lawyers that, if he was prepared to say that he had consensual sex with J, a conviction for rape would be very unlikely, because of the operation of the law on consent. However, Oyston refused to adopt what he claimed was a dishonest defence. Both Oyston and Lysa Rubotham were adamant that no sex, consensual or otherwise, had ever taken place between Oyston and J.

Although I have not met Oyston for three years and have not been able to discuss the case with him, he has let it be known from prison that he will not admit his guilt, even to placate the parole board. His message from prison, to the girl who gave evidence for him, was: You told the truth. I will not make a liar of you by admitting a crime I did not do. I would stay in jail for ten years if it was needed to prove my innocence and your honesty". As we adopt the European convention on human rights, do we not have an obligation to show that our own house is order in that difficult area of the law? It is with that in mind that an application will be made to the Criminal Cases Review Commission for a review of the Oyston case. The commission has two criteria—exceptional circumstances and new evidence. The application can meet both criteria. I earnestly hope that the commission, when it receives the application, will refer the matter back to the Court of Appeal. There is sufficient new evidence available to warrant its intervention.

Finally, I should like to make it absolutely clear that neither Mr. Oyston nor any member of his family has asked me to raise this case in the House. I have done so of my own volition. I believe that something is not right.

I wish to leave the House with some very simple facts to consider. First, Oyston admits that he had sexual relations with young women. Secondly, he has consistently denied rape, even though that may have adverse implications for parole. Thirdly, no scientific evidence for rape exists. Fourthly, no medical evidence exists. Fifthly, there is no firm date for the offence. Sixthly, the police lost the original interview notes. Seventhly, the incident was not reported until two years after it took place.

Eighthly, the accused refused to admit to any sexual activity even though that could have enhanced his prospects of acquittal or brought a lighter sentence. Ninthly, the friend of the victim, Lysa Rubotham, who was present throughout, insists that no rape took place. Tenthly, the victim admitted to being a regular user of hallucinatory drugs. Something is wrong, and I want something done about it.

9.14 pm
The Attorney-General (Mr. John Morris)

I congratulate my hon. Friend the Member for Workington (Mr. Campbell-Savours) on his good fortune in securing this debate, and thank him for his courtesy in providing advance warning of the points that he intended to raise. It must be the best part of 30 years since I replied to an Adjournment debate.

Although I cannot endorse my hon. Friend's portrayal of Mr. Oyston's conviction as a miscarriage of justice, I acknowledge his courage and sincerity in bringing the matter before the House. The House has no more sympathy for properly convicted rapists than do the people we represent. He acts, however, in the best parliamentary traditions by putting forward with his customary vigour the case of an individual whom he believes to have a legitimate grievance, notwithstanding that his cause may be unpopular and that he has criticised that individual in the past.

My hon. Friend's difficulties go deeper, because I know he recognises that questions of guilt or innocence in individual cases are a matter to be determined through judicial processes rather than in a political forum. Similar constraints attach to my role, as I would not expect to answer to the House for the nitty-gritty of each and every one of the 1.3 million cases conducted annually by the prosecuting authorities that I superintend. He largely recognised these limited roles by stating at the outset that he seeks consideration of the case by the Criminal Cases Review Commission.

Mr. Oyston had his appeal to the Court of Appeal dismissed. He does not require my leave or that of a court to apply to the CCRC. He is entitled to do that as of right. The commission has no power itself to change the decision of a court. Its task is to consider whether there is some merit in an applicant's case, and, if so, to examine it to decide whether it would have a real possibility of succeeding if it were given a further hearing in an appeal court. The commission reaches its decisions impartially.

I want to elaborate slightly on what I have already said, but there is not the time tonight to go into my role and duty of superintendence of the Crown Prosecution Service. On 19 December 1979, Lord Havers gave a written answer to the House on that matter. Had there been time—I have only eight minutes—I could have set that out.

Mr. Campbell-Savours

On a point of order, Mr. Deputy Speaker. Cannot my right hon. and learned Friend speak until 10.30 pm?

Mr. Deputy Speaker (Mr. Michael Lord)

The hon. Gentleman is correct: there is no shortage of time.

The Attorney-General

I am obliged. I can deal with the matter in extenso. I am most grateful to my hon. Friend for putting me right, not for the first time.

I have a statutory duty to superintend both the Crown Prosecution Service, which was responsible for the prosecution of Mr. Oyston, and the Serious Fraud Office. The term "superintendence" has been in use for more than 100 years. To my mind, it strikes a proper balance in our democratic society between the need to ensure proper accountability to Parliament while guarding against improper Executive or political influence over the prosecution.

In a speech outside Parliament in 1979, Lord Havers explained his views of "general superintendence" over the Director of Public Prosecutions' activities and the extent to which he was responsible to Parliament for them. He added: but I am not responsible for the individual decisions of the DPP or his officers. The DPP, although being an officer under the Crown, is thus completely independent and non-political. He"— she at present— acts for the public, in the public interest, and for no one else. He will of course discuss particular cases with me and consult me generally; but the decisions taken in the field where he is vested with the discretion to prosecute will be his decision. I referred earlier, when I wrongly thought that I did not have the time to give the quotation, to Lord Havers' written answer. He said: My responsibility for superintendence of the duties of the director does not require me to exercise a day-to-day control and to give specific approval of every decision he takes. The director makes many decisions in the course of his duties which he does not refer to me, but nevertheless I am still responsible for his actions in the sense that I am answerable in the House for what he does. Superintendence means that I must have regard to the overall prosecution policy which he pursues. My relationship with him is such that I require to be told in advance of the major, difficult, and, from the public interest point of view, the more important matters so that, should the need arise, I am in the position to exercise my power of direction."—[Official Report, 19 December 1979; Vol. 976, c. 187.] My primary responsibility, therefore, is to oversee the effective and efficient administration of the prosecuting authorities that I superintend. Hence my establishment of the Glidewell review. I cannot and do not hold myself out as responsible for the day-to-day conduct of each and every prosecution, although these constitutional niceties explain to the House how I approach my responsibilities.

The comments by my hon. Friend raise three key questions. The first is whether Mr. Oyston should have been prosecuted. The evidential test is that there must be sufficient evidence to provide a realistic prospect of conviction. Given the verdicts of the jury convicting Mr. Oyston of rape and indecent assault of this girl, which were upheld by the Court of Appeal, I do not think that I need say more about that first test.

The second test is that the prosecution of the case must be in the public interest. There can be few, if any, circumstances in which, if the evidence were sufficient, the public interest would not require prosecutions in relation to rape and indecent assault such as were alleged against Mr. Oyston.

The second question raised by my hon. Friend concerns the law on corroboration. He is right to say that, before 3 February 1995, the law required trial judges in cases involving allegations of sexual misconduct to give a warning to the jury to the effect that it would be dangerous to convict the defendant on the uncorroborated evidence of the complainant.

The warning proved a fruitful source of appeal by those convicted, and was often seen as casting an unwarranted slur on female complainants. In 1991, the Law Commission recommended the abolition of the relevant law. After full debate here in Parliament, that recommendation was implemented by sections 32 and 33 of the Criminal Justice and Public Order Act 1994.

Those provisions do not mean that a warning is never given. Trial judges still have a discretion to give the warning, but there has to be an evidential basis to justify the warning. It is not to be given merely because the female makes an allegation of sexual misconduct. I should be surprised indeed if this House voted for a reversal of that position. To meet the question asked by my hon. Friend, as a matter of fact, the trial judge exercised his discretion in Mr. Oyston's favour, and did give such a warning to the jury.

Before I move to the next of my hon. Friend's points, I digress to note that the two criticisms are markedly at odds with the criticisms generally levelled at the Crown Prosecution Service for being reluctant to prosecute, and the criminal justice system for making it too difficult to bring rapists to justice, in particular through inadequate protection of the complainant. Prosecutors might perhaps be forgiven for thinking at times that "damned if you do, damned if you don't", is their eternal lot.

That brings me to my third issue. My hon. Friend refers to the evidence of Lysa Rubotham, and the point he makes excellently demonstrates the limitations on the House and on myself. My hon. Friend saw her, and clearly formed a favourable impression. The jury also saw her—and, for that matter, saw the complainant as well. They heard Lysa Rubotham give evidence, and the cross-examination which followed. They clearly did not believe her. I have no means of reconciling those views, and nor does the House.

The issue as to the cross-examination of J, as referred to by my hon. Friend—Miss C, as she is referred to in the law reports—about her previous sexual experience is one which Mr. Oyston's learned and very experienced counsel was more than able to deal with at trial and at the Court of Appeal. The trial judge was in the best position to decide what questioning would be allowed.

The nature of the defence was that the events had not taken place at all, and not that she had consented, which is a frequent defence in such cases. I repeat, the defence was that the events had not taken place at all, and not that she had consented. None the less, there was in fact limited cross-examination about the previous sexual conduct of the complainant directed specifically to the issue which was said to be the defence.

My hon. Friend has also raised the manner in which this witness was cross-examined about her sexual history. He has referred to article 6 of the European convention on human rights. It is true to say that section 2 of the 1994 Act limits the manner in which a complainant in a case such as this can be questioned, but only if such questioning cannot be justified in the context of the case.

Further, the trial judge is under a duty imposed by the common law to do his utmost to restrain unnecessary cross-examination of any witnesses. Additionally, the Bar Council code of conduct requires counsel to limit cross-examination of witnesses to matters which are not merely scandalous or intended to vilify, insult or annoy the witness. Such protection is afforded to both complainants and other witnesses.

In any event, the article 6 point was not and could not then be pursued by defence counsel at either the trial or before the Court of Appeal. I contrast that with the situation that we hope will prevail when the Human Rights Bill has been passed by both Houses and the European convention has been incorporated into United Kingdom law. If Mr. Oyston's advisers now feel that there is merit in that point, it is a matter for them how to pursue it.

My hon. Friend spoke of fresh evidence. The Court of Appeal considered the fresh evidence. There were doubts about the weight that could be attached to some of it, and, in any event, the court declined to accept that it could have an impact on the safety of the verdicts. I should say, for the sake of completeness and with all due respect to my hon. Friend, that what he says about the complainant's involvement with drugs seems to exceed what was said by Mr. Oyston's counsel at the trial, who at one stage in cross-examination put it no higher than "dabbling".

Mr. Campbell-Savours

The reason why there is more information about that aspect of the trial is that, in a subsequent trial, in which a Mr. Peter Martin was prosecuted, the banisters were able to extract far more information from J on that matter. In my view, that information would have been relevant in the previous trial, if it had surfaced at that stage.

The Attorney-General

I do not have with me the dates of that trial, which, as my hon. Friend said, was subsequent, in order to compare them with the date of the appeal in the Court of Appeal. If there had been a change of position by defence counsel, one might have been right to anticipate that that point would have been explored in that court, so my hon. Friend's point lacks the force that it might otherwise have had.

I stress, because it is important for future debates of this kind, that the House is not in a position to review the guilt or innocence of those tried in our courts on allegations of criminal misconduct. There is an established appeal procedure, and, if and when that is exhausted, convicted persons can apply to the Criminal Cases Review Commission. Previously, Mr. Oyston would have had to petition the Home Secretary; that is no longer the case. Since 31 March 1997, the Criminal Cases Review Commission has been up and running.

In Mr. Oyston's case, the Court of Appeal has recently given its view that the convictions were safe. Mr. Oyston now has the right to apply to the commission if he so wishes. He does not need the leave of the courts, the Home Secretary or myself. It will be for the commission to assess the merits of his application, and, if so invited, it may take account of, and give full weight to, matters to which my hon. Friend alluded.

I cannot say more. Parliament has set up the Criminal Cases Review Commission, and, if Mr. Oyston so wishes, he may avail himself of its procedures.

Mr. Campbell-Savours

I thank my right hon. and learned Friend.

Question put and agreed to.

Adjourned accordingly at twenty-nine minutes to Ten o'clock.