HL Deb 04 November 1976 vol 376 cc1516-31

7.3 p.m.


My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, that the House do now resolve itself into Committee.—(Lord Willis.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD CHAMPION in the chair.]

Clause 1 agreed to.

Clause 2 [Restrictions on evidence at trials for rape, etc.]:

Lord HAILSHAM of SAINT MARYLEBONE had given Notice of his intention to move Amendment No. 1: Page 1, line 21, leave out from beginning to ("at").

The noble and learned Lord said: When I put down this Amendment I did not know that my noble and learned friend Lord Morris of Borth-y-Gest, was going to put one down. I have looked at his Amendment and I have looked at mine. I think his is the better and achieves the same purpose that I had intended to achieve by mine. I therefore do not intend to move my Amendment.

Lord MORRIS of BORTH-Y-GEST moved Amendment No. 3: Leave out Clause 2 and insert the following new clause:

Restrictions on evidence at trials for rape etc.

.—(1)At a trial at which any person continues to he charged with a rape offence to which he pleads not guilty no evidence shall be adduced by or on behalf of any defendant at the trial and no question shall he asked in cross-examination by or on behalf of any defendant, in relation to any sexual experience of a complainant with a person other than a defendant unless, after an application made to the Judge in the absence of the jury, the Judge, being satisfied that such evidence or such question is relevant to an issue arising in the trial, gives leave.

(2) In this section complainant means woman upon whom, in a charge for a rape offence to which the trial in question relates, it is alleged that rape was committed, attempted or proposed.

The noble and learned Lord said: I put down this Amendment solely in the hope of being both helpful and constructive. On the Second Reading I made some observations in the course of which I endeavoured to say how much I admired the report of the advisory group under the chairmanship of Mrs. Justice Heilbron. I expressed the view that the general tenor and underlying philosophy of the report were wholly admirable. I, therefore, for my part, expressed a general welcome for the Bill. In particular, I thought that Clause 1, if it is enacted, will prove of great value in the administration of the law, of value as a definition and of added value because of the declaratory provision in subsection (2) of Clause 1. However, I expressed some reservations and those reservations really relate to Clause 2.

On Second Reading I put forward the view that Clause 2 seems to be unnecessarily complex and that it may lead to doubts, delays and debates with all the expense that may as a consequence result. I think that the report pointed out very forcefully that there has been much public concern in regard to the position of women who have been complainants in these cases. Before a woman ever reaches the witness box she will have had experiences of great torment. I am sure that we ought to do as much as we possibly can to see that she is not unnecessarily—and I stress the word "unnecessarily"—exposed to questioning which may be painful, humiliating and distressing. Of course we must remember that it is for the prosecution to prove their case. The prosecution must prove a lack of consent and an accused person must not be denied any proper means of repelling charges brought against him.

The Amendment that I have put down, I have put down in the hope that it meets the case forcibly presented in the report of the advisory group, the case that women who are complainants are often in need of protection. I have not myself taken the view that members of the Bar have needlessly indulged in what has sometimes been called "character assassinnation"; but defence counsel has material, he wants to use his material, and it does not soon or at once become evident to counsel for the prosecution—or, indeed, to the judge—whether what is being put forward has relevance or. if it has any relevance, has real relevance. The Amendment I have put forward therefore, if it was thought to be helpful and acceptable, while avoiding all the complexities of Clause 2 as at present drafted, would provide that no questions could he put to a woman complainant in regard to her sexual experiences with any man other than the defendant unless and until the court gives leave. Application would have to be made in the absence of the jury. The judge would have to consider whether there was relevance in the questions proposed to be put.

It seems to me that in these cases the range of situations is so varied that it is difficult to lay down in any precise terms how a judge would rule in regard to relevance. There must be some real relevance and the judge, I suggest, must be fair to the prosecution, he must be fair to the defence, he must hold the scales evenly and he must do his utmost to protect any witness. I have therefore drafted this Amendment which would provide that the judge would have to have an application before any of these questions were put; he would have to decide whether there was relevance—and I think a judge would consider, "Is there real relevance?" Probably the matters would relate to consent in almost all cases and the situations would be so infinitely various that the judge would have to decide whether there was relevance and whether he should give leave.

It seems to me that that is essentially the function of the judge and that we ought to trust Her Majesty's judges, with their experience, to he able to decide each case on its merits, having regard to its own particular facts. I have not thought that it was necessary to make any fresh enactment in regard to the question whether, by questions put, an accused person may bring in his own character so that questions could be put to him under the provisions of the 1898 Act. I should have thought that the law had been considered in regard to that matter. The prosecution must prove lack of consent, and if the defence is merely challenging that there was lack of consent I think it has been held that the defence to that extent is not attacking the character of the complainant. Therefore I would submit that this can be left to the judges, that that would be fair to women complainants, fair to prosecution and to defence. I put this Amendment forward merely in the hope that it is helpful. I generally favour this Bill. Perhaps my attitude might be expressed if I say, "I come not to bury Caesar but to praise him".

7.13 p.m.


I rise to support the Amendment proposed by my noble and learned friend—if he will allow me to to so call him. The Committee owes a great debt to him for having raised this debate. As I said, I prefer, in the main, his version to mine of Amendments Nos.1 and 2 which I did not move, but I thought that the last words of my own Amendment might be incorporated with his at a later stage as being perhaps an improvement. The real point is that we have to do something to reduce the immense verbosity of modern Parliamentary drafts-manship. The noble and learned Lord's Amendment and my Amendment are about a tenth, I should suppose, in numbers of words to that of the Bill as it now stands. Just look at it. You start at the bottom of page 1, you have the whole of page 2, the whole of page 3 and right down to about seven lines on page 4 in order to achieve the same result. That cannot be right. We aim at the same result and it must be that it is capable of being achieved in fewer words. I see the noble Lord, Lord Cudlipp, here and he knows the necessity of economy of words in another capacity.

If you pass the Bill in its present form it is my serious opinion that there will be hundreds of trials within a trial, there will be scores of appeals to the Court of Appeal and probably a round dozen or so appeals to the House of Lords. I sometimes hear complaints from the other side of the House that Bills produced are a lawyer's paradise. People exaggerate the form of beatific vision enjoyed by lawyers when they argue cases in court, but none the less this clause will cause a lot of expense, a lot of delay, a lot of uncertainty and a lot of litigation. I would ask the noble Lord who is in charge of the Bill to look at it again with a little bit of expert and elegant draftsmanship to see whether he cannot incorporate the best of Lord Morris and the best of Lord Hailsham.


That indeed would be very difficult. will speak, if I may, fairly briefly on this particular point. I am aware of the fact that the noble and learned Lord who has just resumed his seat and the noble and learned Lord, Lord Morris of Borth-y-Gest, have both made it clear that they are supporters of the Bill and wish it well. That being so and given the character of the argument which they have deployed this afternoon I certainly undertake between now and probably the Third Reading of the Bill to cause this matter to be discussed by officials in my Department and the Promoters of the Bill, to see what we can do about this particular problem in Clause 2. Certainly to achieve a greater economy of words is an admirable objective and we will set our minds to it. Certainly I will give that undertaking and I hope that we shall be able to produce something which will meet the general convenience of the House. I cannot give any total assurance at this stage but we will certainly do our best to meet the noble and learned Lord's point.


May I reinforce what my noble and learned friend said, possibly from a slightly lower plane because that is from where I come. After I left the lush but rather souldestroying pastures of the Probate Division I found myself both prosecuting and defending rape cases with extreme frequency. Indeed, the first case I ever defended in the Central Criminal Court was a case of rape, and the last that T prosecuted in that forum was a case of rape. The first case I ever witnessed in an English court when as an undergraduate at Oxford at the Assizes was a case of rape, and the judge who tried it was, as he was then, Mr. Justice Morris on his first circuit. The case was prosecuted by, as he later became, Lord Justice Sachs. So that case, too, was on a higher plane than I was as an undergraduate.

I do not want to be flippant about this matter. The case of rape causes practitioners the greatest of difficulty and the greatest of embarrassment and it is fair to say it also causes juries a great deal of difficulty. Perhaps over the years juries have become rather wider in their sympathies than they used to be. Certainly, when I practised I do not think I ever lost a case of rape, so to speak, if I was defending, because with juries, which were more predominantly male in those days, if one got on the right note one could always in effect invite the jury to come to the conclusion on the basis that either they got up to this sort of thing when they were Servicemen or they wished that they had had the courage to do so. I know that that is a terrible way in which to put "courage but one has to confess that certainly as it stands at the moment the law on rape favours the defendant too much.

I found it extremely difficult when conducting cases on behalf of the Crown to obtain a conviction, and I was very surprised when I came to read the Official Report of the Second Reading to see the figures which the noble Lord, Lord Harris of Greenwich, quoted in respect of the years 1973–74–75 when the conviction ratio, if I may so call it, was about 3: 1. Figures can, of course, say anything, but I assume that the figures were simply as he gave them and that is a very high conviction ratio.

What worries me is that if Clause 2 is passed in its present form, the freedom of manoeuvre of the defence will be severely fettered, and what is perhaps more important is that the freedom of the judge to conduct the trial—as the noble and learned Lord, Lord Morris, said—fairly to the woman complainant, to the Crown and to the accused will also be fettered, particularly by subsection (3) of Clause 2. It seems to me that there are many cases where the jury have to take into account matters which are indeed peripheral to the acts complained of, but which, nevertheless, are extremely important.

For instance, there are many cases of ladies on their way home from dances who accept lifts, and then there are unfortunate consequences. In my experience, the defence is inevitably one of consent, it being said on behalf of the defendant that the girl had gone to the dance, she was out for a good time, she was probably provocatively dressed, she drank too much, she got the good time which she had sought and then, when she got back home and her parents asked her what had happened, she said that she had been raped. This is a story which will be over-familiar to anybody who has had anything to do with this kind of case.

Is it to be said that the defence cannot go into these matters, because that is to me one of the fetters which will be imposed by subsection (3), if by no other. If the behaviour of the complainant prior to the incident is allowed, when does the shutter come down? As my noble and learned friend said, at best this will make for a great deal of time, but at worst what it means is that for every trial there will have to be a trial within a trial, and some form of application made before the defence gets very far under way and the complainant is cross-examined. It does not stop there, because, very often, counsel for the defence has certain instructions which he is very reluctant to put to a complainant; because, contrary to what some Members of the other place believe, on the whole counsel behave in a responsible manner. But as the trial develops, and as the evidence comes out, it may then be his duty to go the whole hog, as it were. That will be a situation of extreme difficulty, if in the middle of the trial he has to go back and seek leave for something which has only just arisen.

I should have thought that what this comes to—and this is something which the Government must face—is either that the judges of this country are to be given discretion to decide when matters have gone too far, when the pendulum has swung too far away from the true, so that matters are becoming unjust either as against the complainant or as against the defendant; or alternatively, a legislative framework will be introduced which will, as I have said, place a fetter on the judge's discretion and he will not, as I read the clause, be able to do what he will frequently feel ought to be done.

If I may end by saying this, we have always left these matters of procedure to the judges, on the basis that if they go wrong the Court of Appeal can put matters right and that, I suggest, is certainly the principle which should be adopted in future. Of course, when it comes to the feelings of a lady who may have been over-roughly cross-examined, that cannot be put right by the Court of Appeal or anybody else, but that is not really the point. The point is whether a trial is to be fair and not whether a trial is of man or of a woman.


The most sensible thing I can say is that I take note of what the noble Earl has said, and I have already made it clear that we will look at this matter before the Third Reading of the Bill.


I should just like to thank the noble and learned Lords, Lord Hailsham and Lord Morris, for their helpful attitude on this clause. As everybody readily admits, it is a little cumbersome, but if you write a medical prescription that, too, is sometimes a little cumbersome, and it is very dangerous to leave out one part simply in order to make it brief. Brevity may sometimes be the soul of wit. It is not always the soul of justice.

We have tried in this clause to encompass the suggestions made by the Heilbron Committee which deliberated on this matter for some time. I absolutely support what my noble friend Lord Harris of Greenwich has said, and we will meet and discuss to see whether something can be done to abbreviate the clause. But I would certainly resist leaving out of that clause one or two of the points which have been made by noble Lords, which are important and which Heilbron thought are important.


May I thank the noble Lord, Lord Harris, for the way in which he has dealt with this matter, and also thank all noble Lords who have taken part in the discussion. I detect a general feeling that we are seeking the same objective, and it is merely that we are trying to decide what is the best path to tread so as to reach the objective which we all have in mind. I am most grateful to the Minister for what he has said, and in view of that I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 agreed to.

Clause 4 [Anonymity of complainants in rape etc. cases]:

7.27 p.m.

Lord HARRIS of GREENWICH moved Amendment No. 6:

Page 6, line 22, at end insert— (", or (d) a bill of indictment charging him with a rape offence is preferred before a court in which he may lawfully be indicted for the offence,").

The noble Lord said: I beg to move Amendment No. 6 and, if I may, will speak at the same time to Nos.7 and 8. The object of these minor Amendments is to include, in the definition in Clause 4 of the time at which a person is to be regarded as accused of a rape offence, a reference to voluntary bills of indictment. This meets an assurance which was given in another place. I beg to move.

On Question, Amendment agreed to.

Clause 4, as amended, agreed to.

Clause 5 [Provisions supplementary to s. 4]:

Lord HARRIS of GREENWICH moved Amendment No. 7: Page 7, line 30, leave out ("(c)") and insert ("(d)").

On Question, Amendment agreed to.

Clause 5, as amended, agreed to.

Clause 6 [Anonymity of defendants in rape etc. cases]:

Lord HARRIS of GREENWICH moved Amendment No. 8: Page 10, line 23, leave out ("(c)") and insert ("(d)").

On Question, Amendment agreed to.

On Question, Whether Clause 6, as amended, shall stand part of the Bill?


I do not want to take a great deal of time on this, because I realise that one could talk almost interminably about it and 1 do not propose to take that course. I raised the issue on Second Reading. I personally do not see that it follows, from the fact that you give the complainant anonymity, that you should give the defendant anonymity. I cannot see that the defendant is in the same position as the complainant in a rape charge. The fact is that we give the complainant anonymity—we have already decided to do so, because we passed the clause—on two grounds. One is that she is unusually placed in the position of having to prove her innocence before she can bring the charge home to the allegedly guilty party; and the other is that, as a rule, she has to face a series of unpleasant suggestions about her compliance with or consent to what has been done; sometimes, one must say, of the most disgusting kind.

As I said on Second Reading, there are arguments both ways but on balance I think that anonymity has it. As a rule, I am against anonymity. I think that publication is for the good of justice and, as the noble and learned Lord knows, I came to this conclusion reluctantly but quite definitely. The argument which is presented in support of the anonymity of a defendant is that sometimes in the course of his defence he has to admit conduct which a certain number of people would consider to be slightly indecorous.

I am left absolutely unmoved by the argument. Not to put too plain a point upon it, it seems to me to be silly. A man who is charged with murder often has to admit rather indecorous conduct in the course of his defence. Nobody suggests that he should remain anonymous throughout until the result is known. Only the other day magistrates refused to commit for murder in a case where a man had to admit to keeping a mistress within a mile or two of his allegedly murdered wife and to calling her in the same night to look after the children. No doubt that was very indecorous but nobody suggested that he should be anonymous. My own belief is that it is sheer sentimentality that because you allow the anonymity of the complainant you have to be even-handed and so you allow the anonymity of the defendant, too. Some people believe that this is obvious. I do not. I regard it as silly and I have said so.


I rise with considerable trepidation, as a layman, to oppose the Amendment of the noble and learned Lord. I understand and fully sympathise with the objects of the Bill, but I fear that by making things a lot less traumatic and less unpleasant for the unfortunate victim of rape, by virtue of the anonymity clause—anonymity for the complainant, that is—and by virtue of the clause that makes inadmissible evidence of previous sexual experience, there is a danger that the chances of an innocent person being convicted will be increased, even if only slightly. This is a very serious matter, because the sentences for such offences are severe, and rightly so. One thinks of a dramatic coincidence the other day that was cited by the noble and learned Lord, Lord Wigoder., in his Second Reading speech. About half an hour before he rose to speak a message had come through on the Press Associaion tape to the effect that an innocent man had been released after serving two and a half years of a 12 year sentence, because the woman in question had admitted that her story was a complete fabrication. There is also a danger that the incidence of frivolous and, indeed, malicious complaints which do not result in a conviction will rise, even if only slightly. Perhaps this is the lesser of two evils. In a sense, all legislation involves a choice between the lesser of two evils. This being so, I feel that Clause 6 strikes a fair balance, and I hope that it will remain in the Bill.

7.33 p.m.


I will speak fairly briefly because, as the noble and learned Lord rightly said when he spoke to the Committee a few moments ago, this is a narrow but not unimportant question. This clause did not appear in the Bill when it was first published and a new clause was inserted during the Report stage in another place to replace a defective Amendment which had been successfully moved in the Standing Committee in another place. As the noble and learned Lord points out, the clause provides for anonymity for defendants in rape cases, with suitable exceptions where it would be appropriate for the restriction on publication of the defendant's identity not to operate.

As explained during the debate on Second Reading, the Heilbron Advisory Group's views on anonymity for defendants before conviction were viewed by the Government with the greatest respect, but we came to the conclusion eventually that it would be wrong to persist with our attitude, given the decision which had been taken in the Standing Committee. The arguments advanced during the debate on the Second Reading of the Bill in this House have been considered by the Government and, indeed, by the sponsors of the Bill. Most of those who are opposed to the clause have taken the line that there is fundamentally no difference between a defendant in a rape offence case and in any other criminal case.

However, there is one fundamental difference: that in rape cases the complainant will be anonymous which, except in blackmail cases and cases involving juvenile victims, is not so with other offences. It is a certain disadvantage to a defendant in a rape case if he can be named while the person making the accusation, except in the rare circumstances for which the Bill provides, cannot. This was the purport of the speech of the noble and learned Lord, Lord Morris of Borth-y-Gest, during the Second Reading debate on the Bill. He said that after fairly careful reflection he had come to the conclusion that Clause 6 was right. That is also the Government's view. Therefore I hope that the Committee will support the retention of Clause 6 in the Bill.


Nothing has been said which has altered my opinion in the slightest, but if anybody thinks that I am going to divide the Committee I am not. I am afraid that it would cause a great deal of unnecessary discussion in another place, although we have dealt with this subject with admirable compendiousness, as we always do. However, having regard to what has been said by the noble Lord, Lord Harris of Greenwich, although I have made my point and stick to it I am not going to ask the Committee to vote upon it.


I hope that I am not impertinent in rising at this stage. I should have done so before the noble and learned Lord got to his feet, but he was very quick about it and I could not do so. I will not detain the Committee for long. I do not believe that this is entirely a matter of tit for tat. As the noble and learned Lord, Lord Hailsham of Saint Marylebone, said, it is not a question that because one side is anonymous the other should be also, even though that was the case put by the noble Lord, Lord Harris of Greenwich. In so many cases of accusation of rape the defence is not just indecorum. It is adultery. This is a matter upon which we all know that the noble Lord, Lord Hailsham of Saint Marylebone, has held strong views in the past, and I suspect that he takes the view, "Serve the person right if they have to be known to have committed adultery".


I really must complain. I never said anything of the kind and what the noble Lord has just said seems to me to be totally irrelevant to anything that I did say.


The noble Lord may not have said that, and if it is not the noble Lord's opinion I withdraw unreservedly what I have said.


I thank the noble Lord.


However, I still think that this is a particular kind of crime and I do not believe that there is anything analogous to it. The noble and learned Lord, Lord Hailsham of Saint Marylebone, quoted the case of a murderer or a person accused of murder—


I said, "acquitted".


—a person acquitted of murder who was able to produce an alibi. Some people choose to do it that way. Your Lordships will remember that the noble Duke, the Duke of Denver, chose before your Lordships' House to risk being hanged rather than to give away the identity of his mistress. The fact is, however, that in these cases you have to admit something which is in the twilit area between sin and not approved of by public policy in this country but which is not actually a crime. My noble friend Lord Wigoder suggested to me that there were other analogous cases, such as a solicitor accused of a peculation who had to say in his defence, "It wasn't peculation; I was merely very inefficient".

It seems to me that there is a difference in a lot of these cases that the inefficiency is something which is of public interest and in the public interest it should be known, and that the adultery is nobody's business except those who actually commit it. I should have thought this was the only class of case in which such an enormous proportion of people have to conduct their defence by admitting something which is seen by the world to be reprehensible and which is yet not a crime. In addition to the case put by the noble Lord, Lord Harris of Greenwich, I think there is a very good case for the retention of this clause.

Clause 6, as amended, agreed to.

Clause 7 [Citation, interpretation, commencement and extent]:

On Question, Whether Clause 7 shall stand part of the Bill?

7.41 p.m.


Before we leave the final clause, I should like to refer to a matter which arose on the Third Reading of this Bill in another place, where Mr. George Cunningham, at col.886 of the Official Report on 15th October—


With respect to the noble Lord, I am afraid that the Rules of the House do not permit him to quote any Member of another place other than a Minister.


May I ask the noble Lord whether it is in order for me to paraphrase?




Referring to a case which received much publicity, involving some young Moroccans who had assaulted a woman in Earl's Court, an honourable Member made the point that it was a curious presumption which suggested that a boy under 14 years of age was incapable of this act, and he went on to express the hope that the House of Lords would see fit to look at the particularly silly presumption in English law, which has no parallel in Scottish law, and would make an Amendment to improve the legislation.

I assumed that one of the honourable Member's noble friends in this House would have tabled such an Amendment but saw nothing in the Marshalled List today; and in an attempt to understand why I read further in the report of the Third Reading proceedings in another place and I saw that the Minister of State—and I believe I am allowed to quote from his remarks—said: 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."—[Official Report, Commons, 15/10/76; col. 890.] With respect, the man in the street—indeed every person with any common sense—knows full well that a boy of 13 is perfectly capable of committing this offence, and that this has always been the case. It does not seem to me that it requires the deliberations of a Committee, however distinguished, to establish that fact. I should like to ask the noble Lord, Lord Harris of Greenwich, whether it would not serve the interests of justice if an Amendment were tabled for the next stage of this Bill in order to rectify the matter.


I think the most sensible thing would be for me to say that I take note of what the noble Lord has just said. He quoted some words spoken by my honourable friend the Joint Minister of State in another place, pointing out that this matter was being looked at by the Criminal Law Revision Committee, and if the noble Lord tables an Amendment we shall of course look at it; but I would not wish to hold out any hope that we would be in a position to accept it.

On Question, Clause 7 agreed to.

House resumed: Bill reported with the Amendments.