HC Deb 08 July 1999 vol 334 cc1267-74
Mr. Boateng

I beg to move amendment No. 4, in page 13, line 24, leave out 'section' and insert 'subsection'.

Mr. Deputy Speaker (Mr. Michael Lord)

With this, it will be convenient to discuss Government amendment No. 5.

Mr. Boateng

The amendments are the direct result of representations made to the Government by my hon. Friends the Members for Luton, South (Ms Moran), for Don Valley (Caroline Flint), for South Swindon (Ms Drown), for Rochdale (Lorna Fitzsimons) and for Stretford and Urmston (Ms Hughes), among others. They are designed to ensure that all sexual offence complainants will be eligible for help unless they say that they do not want to be eligible. Every sexual offence is likely to be distressing and frightening. It represents an assault of the most intimate kind and, if the complainant and defendant know one another, a betrayal of trust. In Committee, I agreed to consider whether complainants in sexual offence cases should have a greater degree of certainty that they will be deemed eligible for assistance. After consideration, I agree that the particular nature of sexual offence cases and the problem of attrition in those cases demand that we give sexual offence complainants greater certainty. They should have the certainty that they cannot be judged ineligible for help unless they do not want help. The debate in Committee was enormously significant. It was enhanced by the representations made by the hon. Members whom I have mentioned, not forgetting the representations made by my hon. Friend the Member for Basildon (Angela Smith), who brought the point home with particular force and has used her considerable influence to bring about this outcome. I hope that in the light of that, hon. Members on both sides of the House will give the amendments a fair wind.

Ms Julia Drown (South Swindon)

The amendment gives the complainant the strongest possible presumption that special measures should be adopted unless the witness does not want them. As one of those who have argued for the strengthening of the clause, I welcome the amendment. The amendment allows the strongest possible assumption, but not an absolute automatic right to special measures because the judge could decide that none of the special measures would help the witness. The intention of the clause is that it would be incredibly unusual for someone not to be given at least a screen, but it still allows for no special measures to be applied. A justification for that is the European convention on human rights, which we have now incorporated into British law. Article 6 of that convention says that everyone is entitled to a fair trial.

7.15 pm

I am not aware of any authority or previous ruling that has laid down that screens—which we may take to be a minimum protection—breach article 6 by acting as an impediment to effective cross-examination. As my hon. Friend the Minister will be fully aware, the European convention on human rights allows for a margin of appreciation in the interpretation of its provisions by signatory states. Some leading lawyers believe that that margin would allow the Home Secretary to permit screens in court under article 6. Has counsel's opinion been obtained on that issue? If so, what was the advice?

Given that the minimum of a screen as a special measure would not restrict a fair trial of the defendant, I would want the Government to go further even than they have by tabling amendment No. 5. I should like them to say that a screen would be the minimum that they would expect for a witness in a rape trial.

Guidance would need to be given to judges, to say that the minimum of a screen does not prevent other measures—such as clearing the court—from being offered, but that the screen should be regarded as a minimum protection and that, if the witness requests further protections, the court must give the matter serious thought.

The huge advantage of setting the automatic right to at least a screen would be that we could then offer potential witnesses some certainty. They could be told from day 1, when they walk into the police station to report the crime, that if the case went to court, they would not have to face the accused if they did not want to. An automatic right for complainants to be afforded such protection would be better for defendants, too. If in all cases the judge has the ultimate say over whether special measures are appropriate, so that particular measures are allowed only in specific cases, it may be difficult to prevent juries from forming the belief that there is something especially sinister about the defendant in a case where a special measure has been allowed. If there is an automatic right to special measures, juries can be advised that the use of the special measures has nothing to do with any special features of the case or of the defendant.

Undoubtedly, the law needs to give better protection to witnesses. Some victims of rape say that they cannot face even the prospect that they might have to face their attacker again in court, and that they would prefer to let the attacker go free than to risk going through that experience. Amendment No. 5 would obviously help those victims.

Does my hon. Friend the Minister believe that, if amendment No. 5 is passed and if sufficiently strong guidance is given to judges, he will be able to give men and women rape victims the assurance that they need to enable them to report crimes of rape and face going into the witness box?

I should like further clarification. In Committee, my hon. Friend the Minister confirmed that complainants would not usually attend pre-trial hearings, but that in rare situations, that could happen. I then asked how complainants would be protected at pre-trial hearings in the unlikely, but possible, event that both they and the defendant turned up in the same room. I was very pleased to hear in Committee that a judge would have the power to prevent a witness from having to be in the same room as the defendant in such situations. However, can my hon. Friend assure the House that he will give judges sufficiently strong guidance to ensure that they exercise that power when the witness wishes her or him to do so?

Will my hon. Friend assure the House that the protections that, rightly, he has included in clause 41 to restrict the use of sexual history evidence in trials can also be extended, via the guidance or via further legislation, to apply to pre-trial hearings, too, so that victims know with certainty that they will have all the protections that the Government envisage through all parts of the justice system? One reason why special measures are so necessary is that, sometimes in rape cases and all too often in the past, sexual history evidence has been brought into rape trials. It could have been thought that fewer victims would need special measures if the Bill had outlawed all inappropriate sexual history evidence.

However, many of us now accept that we cannot do everything that we had hoped for in the Bill in terms of limiting sexual history evidence, which makes screens and the strong presumption in favour of screens as proposed in amendment No. 5 even more crucial. The barrier to our making as much progress on the matter now as would be desirable is that the rules on the admissibility of evidence must be framed in the light of the definition of rape contained in the Sexual Offences Act 1956. Understandably, we cannot have two inconsistent laws.

The strong presumption in favour of screens, as proposed in the amendment, will encourage rape victims to come forward. I welcome the moves to limit sexual history evidence, but they cannot give complainants the complete assurance that they will not subjected in court to humiliating or intimidating questions about their sexual history. Many women have described the experience of a trial in which they have had to go through their sexual history in intimate detail as a humiliation which made them feel as though they had been raped again.

We must recognise that however much witnesses are protected from unreasonable questioning about their sexual history, it is inevitable that, in many rape cases, witnesses will have to give intimate and detailed sexual evidence. That is bound to be the case when the defence is that intercourse did not take place. We should not forget, therefore, that the experience is bound to be traumatic and intrusive for the complainant. We are discussing ways in which that trauma and intrusion can be reduced, but it cannot be removed entirely. I have discussed with my hon. Friends the many police officers, lawyers and women's refuge workers who told us that if they had been raped, they would not take their case to court. Their testimony is eloquent.

The strong presumption in favour of special measures is relevant. Although the Bill goes some way towards reducing the admissibility of sexual history evidence, particularly in cases where the defence is arguing that the complainant consented, the Bill cannot rule out inappropriate sexual history in all rape trials. That cannot be done because the definition of rape currently on the statute book allows as a defence the argument that the defendant had an honest belief in consent, even if he now admits that the victim did not consent, or worse—that the defendant had an honest, but unreasonable belief in consent. It is incredible that such a defence should be available. We must try to make sensible laws about what constitutes reasonable evidence and appropriate special measures in a rape trial. On discovering the possible defence of an honest, but unreasonable belief that the victim consented, I felt rather like Alice stepping through the looking-glass and moving into a world of make-believe.

However, even for this defence, through the Bill, we have introduced restrictions on sexual history evidence. Those restrictions are that refusing to give such evidence could lead the jury to an unsafe conclusion, that the main purpose of the evidence must not be to undermine the victim's credibility, and that the evidence must relate to specific instances of sexual behaviour of the complainant. That is as far as we can go while such a ridiculous defence is available. That makes this amendment essential.

I should be interested to hear whether my hon. Friend the Minister believes that the Bill introduces further restrictions, in addition to those that I outlined. We wanted to reduce the horrific cases in which inappropriate sexual history is brought out in court and widely reported, which deters other victims from reporting rapes. In Committee, we discussed a case in which it was pointed out in court that in the past, the witness had had sex with an Asiatic, and that the accused happened to be an Asiatic, and another case in which the witness was reminded that she had had sex with a man older than herself who was of the same age as the defendant. It is understandable that complainants would want the court to be cleared if such evidence were presented.

Although such evidence will now be ruled irrelevant, it could be relevant if it related to specific instances of sexual behaviour and the defendant claimed an unreasonable, but honest belief that the complainant had consented. The defendant could argue that he believed stupidly, but honestly that because the complainant had had consensual sex with a similar person, she consented to sex with the defendant on the occasion in question. The Minister said in Committee that offensive and irrelevant questions should not be allowed in our courts, but under the Bill, it will still be possible to present similar evidence. That further emphasises the need for the amendment. The Bill is intended to overrule the Court of Appeal judgment in the case of Viola in 1982, which argued that a complainant's promiscuity was relevant to consent—a ridiculous judgment. The overruling would apply to consent, but not to belief in consent, as a defence. Hon. Members will agree that victims in such situations have a strong right to special measures.

I should be delighted to hear from my hon. Friend the Minister that the Bill precludes specific instances of sexual history being brought out to justify cases such as the three to which I have referred, in which case victims might not have to ask for all the particular special measures that we are making available through the clause. If so, surely we are changing the law of evidence in anticipation of how we want the law to change. That is precisely what my hon. Friend told us in Committee that we cannot do. As long as the defence of unreasonable, but honest belief in consent remains, unreasonable evidence may be admitted, which makes special measures all the more important.

Mr. Llwyd

A defence of that nature—the subjective test—exists in relation to many other offences. It is nothing new, it is not peculiar to this offence and it does not seem to create any injustice in any other context.

Ms Drown

We are particularly concerned about the attrition rate in rape cases and the fact that so many vulnerable people will not come forward because of the sort of evidence that has been brought forward in the past.

I acknowledge that the Government are tackling the larger problem by reviewing the definition of rape. That is desperately needed, because we will not be able to give women victims confidence that the law will always protect them until unreasonable belief in consent is removed as a defence from the law of the land. For that reason, special measures are even more necessary, although in a sense we are putting the cart before the horse by considering special measures and evidence first rather than the offences.

The problem with unreasonable belief in consent is not the only reason why we need those special measures. Even though there are special protections in clause 41, there is still a need for special measures, such as clearing the court or being able to give evidence from behind a screen. Under subsection (3)(b), a person might have to talk about sexual behaviour…at or about the same time as the event", which makes special measures necessary. We need to consider whether that is the best way of protecting witnesses. It has been suggested that we should use special measures rather than look in more detail at sexual history, but we should look in more detail at the root of the issues relating to sexual history and consider whether we are doing all we can to make sure that guilty people are brought to trial. For example, clause 41(3)(b) concerns anything that happened around the time of the event and whether such events are relevant to consent, which is what the Government would argue. All those things could be brought in under rebuttal, which few people have mentioned, or under a restriction that is used in many other countries: sexual behaviour evidence should be limited to that between the defendant and the complainant.

In Committee, the Minister gave the example that it would be relevant to know that a couple had been seen kissing in a doorway or on a park bench—or, to take another example, that they had had consensual sex—an hour before the alleged incident took place. However, we were not given an example of behaviour with anyone other than the complainant which would be relevant to consent, so should not the Government be considering that as at least an added restriction to subsection (3)(b)? Can they justify subsection (3)(c)(ii), under which any previous, strikingly similar sexual history is relevant to consent?

The Government have rightly and strongly said that, in general, people do not decide to consent to sex with anyone on any occasion. People give consent on separate occasions to a certain person and the law should uphold that. If such examples are still to be brought in, we can see the case for the amendment: victims need those special measures. Subsection (3)(c)(ii) has been justified by some peculiar examples. Baroness Mallalieu has referred to a sexual history involving a "Romeo and Juliet" balcony scene followed by sex. In a trial, that would be considered to be relevant to consent if the rape was alleged to have occurred in similar circumstances. If that is to be allowed, an amendment to clause 17 such as this is definitely necessary.

7.30 pm

We need further scrutiny of these issues. The Government have gone a long way towards limiting sexual history evidence and providing better protection for rape victims. Nevertheless, until we review current sexual offences, we shall not be able to give proper protection to women and men victims of rape. The Government need to ensure that the sexual offences review concludes as soon as possible, and to get rid of the honest, but unreasonable belief in consent defence. Then we need to return to these clauses, and ensure that all irrelevant sexual history is excluded from trial and that victims can be guaranteed special measures protections that they request.

Mr. Bob Russell

The amendments are to be welcomed. If I may, I shall draw the Minister's attention to the fifth sitting of the Committee when I asked: Would it not be to the advantage of all concerned if, when the victim requested special measures, they were granted? Otherwise, the victim might well have to go through the equivalent of a pre-trial hearing."—[Official Report, Standing Committee E, 17 June 1999, c.121.] In reply the Minister said "No" and explained that answer. Do I now understand that his answer to my request of last month is now yes?

Lorna Fitzsimons

I wish to put on record how important this amendment is and how welcome the Government's new approach has been, in particular that of the Minister and his ministerial team. He has been open to people like myself with no legal background whatever and has helped us understand the problems in other bits of the law that we, as interested parties, face—specifically in the application of special measures. We acknowledge that the Government recognise the special needs of the most vulnerable people, to which special measures he is attending, and realise that we cannot do everything in this Bill.

The achievement of the women on the Committee needs to be put on record. They and the ministerial team have been working round the problems of our awful legal system where witnesses do not count because what matters is what can be proved in a court of law. Ordinary people cannot understand it. We have pushed back the boundaries.

We need to look at the review of sexual offences and other bits of the law, such as the definition of belief. I welcome the Government's approach and believe that it will achieve a lot for the most vulnerable whose voice is not heard at present.

Mr. Boateng

I thank my hon. Friend the Member for Rochdale (Lorna Fitzsimons) for those kind remarks and echo them in relation to the Bill team who have been responsible for giving us the back-up that they have on these amendments and responding to the points made by hon. Members on both sides of the Committee during the debate.

It has been important, and it has guided our work as a Bill Committee, to determine that the courts should be required to put at the heart of their consideration of the matters before them the needs and views of individual witnesses, taken on board and understood in detail, in terms of the court determining the appropriate response to make sure that witnesses can give of their best evidence. This is all about ensuring that witnesses give of their best evidence because it is when witnesses have been able to present that best evidence to the court and the jury have had an opportunity to understand and appreciate it that the interests of justice are most likely to be served. The interests of justice are best served by our addressing the causes of attrition in a way that is based on research and developing best practice, and ensuring both through primary legislation and guidance to the court how best to give complainants the confidence and reassurance that they so desperately need to go forward with these prosecutions. Hence it is important to ensure that a menu of measures is available to the courts, so that they can consider which one will best meet a particular witness's needs. We intend to proceed down that route, rather than impose an artificial norm to be followed unless a witness protests.

Some rape complainants may find a screen helpful. In other cases, the court may decide that the witness should be kept out of the court altogether so as to be able to give of their best evidence, and that a video or live link would be better. In those cases, rather than a screen, the first thing the court should consider is a video or live link. Having taken into account the needs of the witness in some detail in the context of what is occurring in the court, the judge should be able to put those special measures in place.

The amendments ensure that sex offence complainants have confidence that they will get the understanding of the court to which they are entitled, and we must back that up with guidance. I can assure my hon. Friend the Member for South Swindon (Ms Drown) that guidance will be forthcoming: it will be clear and focused on the needs of witnesses to enable them to give of their best evidence.

The Government have heard the representations of the hon. Member for Colchester (Mr. Russell) and those of my hon. Friends in Committee, which is why we have come to this conclusion. We believe that it is important for the courts to retain proper control of how evidence is given at trial, and to strike a balance between the needs of the witnesses and the interests of a fair trial. That is necessary to accord with our European Court of Human Rights obligations. In response to my hon. Friend the Member for South Swindon, we are quite satisfied that the measures that we are introducing are entirely in accordance with our ECHR obligations. The court will be able to consider the views of all parties, including the party calling the witness, who may take a different view from that of the witness. Having borne in mind the totality of all the circumstances, it will be able to come to a proper conclusion.

In her wide-ranging speech, my hon. Friend the Member for South Swindon raised the wider issues around consent and belief in consent. I hear what she says, and note her vigorous critique of the law of rape as it now stands. There will be varying views in the House about how best to constitute the offence of rape. I am glad to say that the Government are determined to take an inclusive approach by reaching out and giving everyone an opportunity to make representations, hence the importance of the sex offences review. I am delighted that so many hon. Members availed themselves of the opportunity that I gave them earlier this week to attend that seminar, and I am grateful to them for doing so. There will need to be more debate and discussion.

Amendment agreed to.

Amendment made: No. 5, in page 14, line 2, leave out from 'offence' to end of line 5 and insert '(or to that offence and any other offences), the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness' wish not to be so eligible by virtue of this subsection.'.—[Mr. Boateng.]

It being five and a half hours after the commencement of proceedings on consideration of the Bill, MR. DEPUTY SPEAKER, pursuant to Order [this day], put forthwith the Questions necessary to dispose of the business to be concluded at that hour.

Forward to