HL Deb 22 October 1976 vol 375 cc1763-94

4.18 p.m.


My Lords, I beg to move that this Bill be now read a second time. I should like to apologise for the fact that this business has come on at this hour, but I think noble Lords will realise that it is not entirely my fault. I think the House ought to look again at the length of some of the speeches. I was horrified to see that this morning two of the speeches went on for 35 minutes and several for 20 minutes, repeating points which had often been made. I shall be as brief as I possibly can.

My Lords, in a sense it might be said that this Bill originated in this House because the need to deal urgently with some of the problems that arise in cases of rape became apparent following a decision in the House of Lords in 1975 in the case of the Director of Public Prosecutions v. Morgan and others. That decision received a great deal of publicity. It was called, quite wrongly in my view, a "rapist's charter" and many similar things. But it gave rise to genuine misconceptions and as a result the Government set up an advisory group on the law of rape under the chairmanship—or should I say "chairpersonship"?—of Mrs. Justice Heilbron. This Bill is a direct product of the report made by that committee.

I should like to pause briefly to pay a tribute to Mrs. Justice Heilbron and the members of her group for what the Home Secretary at that time described as the care, compassion and speed with which they carried out their task. May I thank them also for a report which for once is written in clear, positive and unpretentious English. Whoever was responsible for that final draft must have read Sir Ernest Gowers's wonderful book Plain Words, and taken heed of this advice to civil servants: Never use a ten shilling word when a sixpenny one is available. I cannot adequately pay tribute to the many people, both inside and outside Parliament, for their contribution, direct and indirect, to this Bill. However, I must briefly mention three. The first is a person who may not be familiar to many of your Lordships. Some 38 years ago a girl of 18 was raped. As a result of that encounter she contracted venereal disease. Due to ignorance, bad advice, shame and carelessness on the part of doctors, parents and others, the rape was not reported. The criminal was not punished and the disease which she caught was not properly treated for 29 years. She was unable to have children and her life was ruined. She determined that other victims should not suffer as she had done and began a campaign to bring about changes in the law of rape. Her name is Joan Jones, and it is partly as a result of her efforts that the Government decided to act in this matter. We owe her a debt of gratitude because she has shown great courage.

Two other people must be briefly mentioned—Mr. Jack Ashley, Member of Parliament, to whom Mrs. Justice Heilbron paid warm tribute in her report. I should like to endorse every word that she said. And finally we have to thank Mr. Robin Corbett, who promoted this Bill in the House of Commons and who has worked enthusiastically for it. I should now like to say a few general words about the Bill before going into it in more depth.

The Advisory Group looked into the issues raised by the Morgan case and at other aspects of the law on rape and reached the conclusion—which was endorsed by the Government—that the decision in Morgan was right, and that it should be adhered to. But it also recommended that there should be legislation to clear up any misunderstandings that may have arisen. The group recommended that the legislation should define rape, and that it should in particular bring out the importance of recklessness as a mental element of the crime. It should emphasise that the absence of consent is the essence of the criminal act. The group thought that the legislation should include a declaratory provision, applying in those cases where the accused's belief that a woman was consenting to sexual intercourse is a matter which the jury has to consider. The group also made a number of practical proposals designed to make it less difficult for a victim to report rape to the police and to alleviate her distress. Under present practice a woman can often be subjected to searching irrelevant cross-examination, resulting in unnecessary and hurtful revelations of her private sexual history, which did nothing to advance the course of justice. It concluded that some restriction ought to be placed on such cross-examination. In its view this could be done only by direct regulation of the matter.

The Advisory Group also recommended that the complainant should be anonymous because disclosure of a rape victim's name caused very great distress and also tended to discourage women from reporting rape. The group did not recommend similar anonymity for defendants in rape cases. However, the House of Commons, by a majority of 9 to 2 in Committee, decided that the defendant should be anonymous too. Notwithstanding their opposition to anonymity for defendants—because they accepted the Advisory Group's view that there was no sensible basis on which rape could be distinguished from other offences—the Government moved, on Report, a new clause providing for a defendant's anonymity. This replaced a defective Amendment inserted in Committee. This clause (now Clause 6) is entirely acceptable to the Promoters of the Bill. It is of course a matter of judgment whether there is a sound case for anonymity for a defendant in a rape case: in the Promoters' view, and my view, there is. Apart from this new clause, and the fact that it does not implement the group's recommendations about juries, the Bill follows substantially the Advisory Group's proposals.

Rape is a controversial subject, and any constructive comments made in the course of the debate, or Amendments subsequently put down for consideration in Committee, will receive most careful consideration. It should be stressed that the Bill is confined to the law of rape and related offences. It does not deal with and is not intended to update the Sexual Offences Act. In the course of its wider review of the whole of the law on sexual offences, the Criminal Revision Committee will be able to consider the many related problems, such as anonymity in regard to other sexual offences, but it would be wrong to delay urgently needed improvements in the law of rape until this Committee's major review is complete. My Lords, it is customary, I know, to go through the provisions of a Bill bit by bit, but in view of the time, and since I assume Members of the House have been able to read the Bill, I shall, with your Lordships' permission, not go through them in great detail.

I want to conclude by saying that this is a very emotive subject and I have tried to keep away from that aspect of it today and to deal with it in a straightforward, objective way, but we have to remember that "rape" is a four-letter word, in all the shades of meaning which that phrase implies. It is perhaps the only crime where the victim is as much on trial as the man accused. Moreover, the trial and the examination before the trial are often as destructive of the woman as the rape itself. We have to remember that an hour or so after she has been raped and has reported it, if she has the courage to report it, the woman has to go to a police station and undergo the most demeaning and difficult examination. The police have no alternative but to do it, because they have to protect the public against frivolous complaints, but nevertheless it is most distressing for a woman and prolongs the agony of the rape itself.

Nothing in this Bill will make it easy for a woman to come forward, but it will perhaps make it less difficult and, above all, it will make it possible for her personality and her name to be protected. She will no longer be on trial with the criminal. For that and many other reasons, my Lords, I commend the Bill to the House. I hope that in spite of the hour and the arduous work that you have put in this week, your Lordships will remain to the end and see it on its way. I beg to move.

Moved, that the Bill be now read 2ª—(Lord Willis.)

4.27 p.m.


My Lords, I hope the House will not be unduly intimidated by the statement at an earlier stage by my noble friend Lord Carrington. I shall be a short as I can, but I am bound to say it would be difficult for me, in an important Bill of this kind, to say absolutely nothing; and, because one has to be accurate, it is not always possible to be extremely concise.

Apart from my position on this Bench, which really compels me to talk about Home Office Bills more often than not, I think I can lay claim to two qualifications to take part in this debate. In the first place, I was a member of the majority of the Appellate Committee in Morgan—and I should like to come back to that in a moment or two—and, in the second place, during a misspent life, mostly in commercial and accident cases, I have probably taken part in more rape trials than most of the people now around this Chamber, except the noble and learned Lord on the Woolsack and one noble and learned Lord whom I am happy to see here on the Cross-Benches. So I speak to some extent from experience.

Rape is, of course, an absolutely detestable crime. I should have thought that in a great number of cases, in practically all, it deserves condign punishment of the most serious kind. The only qualification I would give to that is the case, which does exist, where a young woman leads a young man on to, if I may put it discreetly, the point of no return, when some degree of mercy is shown, as a rule, either by the jury in a sentimental verdict or by the judge in assessing the sentence. All women are vulnerable to rape. The youngest age of a victim I can think of is something like 18 months and the oldest age late into the sixties or seventies. All women are vulnerable, and potential victims.

I doubt whether the crime is quite as frequent as some people have said lately. Rape, being a dramatic crime, tends to be fully reported in every case and the result is that people see it in the newspapers every day, but my impression is that it is on the increase, as part of the general pattern of violence which has unfortunately afflicted the present age. The worst cases are, of course, the carefully planned cases of deliberate rape, such as that of the Cambridge rapist who, quite rightly, was sentenced to imprisonment for life. But as bad, in my opinion, or, at any rate, almost as bad, are the multiple rapes where an unfortunate woman is raped by a gang of men one after the other.

The case of Morgan which gave rise to this Bill indirectly—though not as the noble Lord, Lord Willis, said, directly—was a particularly bad case of rape. It was one of the cases of multiple rapes, and the most horrible fact about it was that the three or four youths who were guilty of the rape together were egged on, and actually led and procured, by the husband of the victim, who was quite properly sentenced to a period of imprisonment which was longer than that of the others in the case.

The defence in that case, as in so many others, was consent. I use the word defence in inverted commas because of a reason which I will give in a moment. It was absolutely exploded by the prosecution during the course of the trial, and there really was not a leg to stand on. But then, rather as an afterthought and perhaps in desperation, one of the defence counsel—for there were more than one—began to rely upon the rather absurd theory that, although the woman had not consented, some of his clients had, however unreasonably, believed that she had consented and, as the majority in the House of Lords decided, the judge wrongly directed the jury that if the belief was an unreasonable one then they must convict, and this was, as the majority in the House of Lords decided, an error of law. There was never any chance of them getting off, because the facts were so stark and inescapable that even the majority in the House of Lords, of whom I was one, had to say that any jury, even if correctly directed, would have come to precisely the same conclusion. So we applied what is technically referred to as the proviso.

The reason why it was a misdirection is that English criminal law, and I think the criminal law of all civilised countries, implies that there are two quite separate factors in every offence. The first is a prohibited act, referred to in text-books as the actus reus—a phrase which is both bad Latin and bad sense—and a guilty state of mind, which is more accurately, but still rather absurdly, called in dog-Latin, mens rea, At any rate, Mens rea, the guilty state of mind, may consist in a variety of different states of mind. The classic case is intention and that is so both in murder and in rape. Of course, in cases like receiving or handling, as it is now called, it is a state of belief. But, in any case, the prosecution, in order to secure a conviction, has to establish a guilty state of mind as well as the commission of the prohibited act.

In rape, the prohibited act is having nonconsensual intercourse with a woman and, as it was ultimately decided, the guilty state of mind is primarily the intention to have such intercourse. Quite clearly, if there is no intention to have such intercourse, so the majority decided—and I feel quite confident after Mrs. Justice Heilbron's Report, quite rightly decided—then there can be no conviction of rape. What they went on to say, and I think that all the academic lawyers now agree we did, in fact, considerably clarify the law of guilty intention, which had been allowed to get into rather a mess as a result of a series of complicated decisions stretching over a century, is really obvious if you think of it. If you do not care whether or not a woman consents—in other words are reckless as to whether she consents—that is the same thing as to have intercourse with her against her consent. I regard that as a commonsense decision.

What went wrong after that? The first thing that went wrong was that the Court of Appeal had formulated this question of general public importance in a way which I think now was probably misleading. I wish that I had refused to answer the question at all and had given my opinion in terms of my speech and said that the question was perhaps not a wise formulation of the problem. If I had done that, it would probably have fizzled out in a very different way from the way it did. Unfortunately, the Press got the result of the case before they got the judgments and so they reported the case without having seen a word of any of the judgments but having seen the question formulated by the Court of Appeal. That gave rise to an agitation to which the noble Lord, Lord Willis, referred and which, as turned out in the light of Mrs. Justice Heilbron's report, was based on a misunderstanding of what had been decided.

If anyone still retains any doubts about what Morgan decided I recommend them to read that excellent report and I should like to endorse what the noble Lord, Lord Willis, said in a tribute to Mrs. Justice Heilbron, who is a very well-respected member of the Bench and of her own community in society. When I saw the agitation going on, it seemed to me essential that Parliament should have to legislate because of the intensity of public emotions and I drafted a Bill which I sent, I forget whether to the Lord Chancellor or the Home Secretary, for his consideration. No doubt it filtered through in due course to Mrs. Justice Heilbron. As I once said before to the noble and learned Lord, I never get my drafts accepted by the Parliamentary draftsmen, but in fact Clause 1 of this Bill reproduces—rather less elegantly I fancy—the exact sense of what my draft Bill did. That is a thoroughly good thing to have done, although, speaking for myself, I should have preferred to see a new Section 1 to the Sexual Offences Act 1956 and not the way in which they have done it.

However, having found there was nothing in the original agitation, in effect, Mrs. Justice Heilbron quite rightly drew attention to two quite genuine grievances which exist in cases of rape. The first deals with the anonymity of the defendant, and that is dealt with in the next clause of the Bill so far as I remember. This is a very arguable case either way and it is not an easy problem. But I come down firmly each time I consider it on the side of Mrs. Justice Heilbron and of the Bill.

In the case of rape before you come to consider the guilty state of mind, you have to prove the prohibited act and the prohibited act is non-consensual intercourse. The result is that defending counsel have necessarily, in a large number of cases of rape, including some of the very bad ones, to put to the woman who has complained of it some very painful suggestions, usually made up by the defendant or often made up by the defendant, to the effect that she in fact consented to what was being done. Sometimes this defence succeeds. I shall not weary the House at this hour with reminiscences, but I have known it succeed beyond peradventure of doubt. The effect is that in almost every case of rape, except where the defence is one of mistaken identity, the woman has to relive the experience in considerable detail and have put to her a number of very offensive matters which defending counsel cannot avoid by any possible stretch of the imagination because it is the very fact which is at issue.

The prosecution hope to prove the absence of consent, although on an acquittal the woman may be said to have been found guilty without having been proved guilty. The presumption in a rape case is always that the prosecution have to prove the guilt of the accused whereas the woman, although not on trial, has to establish her innocence. This leads me in the end to come down in favour of the Bill and of Mrs. Justice Heilbron's report. I can do so with complete independence because a similar provision was always contained in my draft Bill.

However, there are arguments the other way. Unfortunately, with 12 jurymen, a large number of members of the Press and perhaps another 50 people in the public gallery, the facts of a rape case are fairly generally known in the locality and anonymity is only a very partial protection. In some ways, if there is a conviction the interest of the woman is for the very greatest possible publicity, but in the end, and for the reason that I have given, I believe in the anonymity of the victim—at any rate, subject to the safeguards which are contained in Clause 2 of the Bill.

What I do not believe in, and I must say this very bluntly, is the anonymity of the defendant. Of course it is clear that a defendant who is charged with a disgusting offence like rape is considerably humiliated by the experience, whether he is convicted or acquitted; but so he is if he is charged with murder, or a long series of thefts or, indeed, with anything else. I think that some male chauvinist pig on the Committee of another place must have put it into the Bill out of sheer sentimentality that the defendant should be anonymous. I quite see that there is some kind of an argument for making all defendants anonymous, but I do not suppose that the Press would like it very much, and I should not like it very much, either; but until somebody call tell me why a defendant to a case of rape is different from a defendant to a case of murder I shall remain completely agnostic on the subject of that clause in the Bill. I wish that the Government had stood up firmly against it instead of listening to the sentimental argument that men must be treated the same as women. For my part, I say vive la différence in this case.

The next question is that of cross-examination. If you are going to put up a defence of consent it is helpful if you can attack the victim's character. Therefore in cross-examination counsel, naturally with zeal for their clients, tend to throw a certain amount of mud at victims by way of asking questions about their sexual life outside the matters directly at issue in the case. My own view, for what it is worth—and I am glad to see that the noble and much more experienced and learned judge on the Cross-Benches is in his place and is perhaps going to help us—is that judges, on the whole, have not ridden defending counsel on a sufficiently tight rein. If they had ridden defending counsel on a tighter rein I do not believe that the clause in the Bill relating to cross-examination would have been necessary. I think that it probably is necessary, but when I see this appalling piece of verbiage contained in pages of print in the Bill before us my blood runs cold.

I believe that I could have drafted a clause which in about three or four sentences gave clear directions to a judge that unlimited cross-examination as to credit was not to be allowed except where the interests of justice clearly allowed it. In the form in which we have it for consideration, my opinion is that there will be trial after trial within a trial. There will be an inordinate amount of time wasted—and money, for what it is worth.

Furthermore, if you draft page after page of print to achieve a result which ought to be dealt with by judicial discretion, you will in fact have case after case brought up on appeal, first to the Court of Appeal and it may even be to your Lordships' House, to excruciate the judges without any useful purpose whatever being served. At the end of it, that is my only criticism of the Bill. It is much too complicated to achieve a fairly simple result.

I must say now what I think we ought to do with it. We certainly obviously ought to give it a Second Reading. I should have liked personally to consider it rather carefully on Report with a view to simplifying, though not altering, its policy; to simplify the drafting and to avoid the evils which I have stated, and to take out the anonymity of the defendants. But I really do not know, at this stage of the Session and in the state of muddle in which we now are, whether we can achieve that purpose by having a proper Committee stage. The Commons have considered this inordinately. I do not think they improved it, because they added the anonymity of the defendant and they did not do anything to simplify the drafting. I am afraid we may have to pass it as it is, and despite the fact that I learned earlier this afternoon that the noble Lord, Lord Wigoder, who has had much more experience of criminal cases than I had at the Bar, has very considerable reservations about it, the conclusion I arrive at is that the Bill is right and ought to be passed—and that it ought to be passed, if we can do so, in the simpler form; but if not, we must pass it as it is.

4.46 p.m.


My Lords, such observations as I want to express are of course entirely personal. This is in no sense an issue of Party politics, although I think perhaps one political consideration does arise, to which I shall refer in a moment. Perhaps I should add at once that nothing I have to say is intended in any way to minimise what I regard as the gravity of a very often hideous offence which almost invariably merits extremely severe punishment. Like the noble and learned Lord, Lord Hailsham of Saint Marylebone, I welcome Clause 1 of the Bill. It is said in the Explanatory Memorandum to be a declaratory clause and I believe that to be correct. I think it does little more than to re-state the law of rape as it has always been, but it was I suppose desirable that that should be done after the slightly hysterical overreaction to the rather extraordinary circumstances of the case of Morgan, which has already been referred to. That re-statement I welcome.

I come now to consider the perhaps somewhat more controversial issues of the Bill. The noble Lord, Lord Carrington, speaking in the heat of a rather warm moment, indicated that I was going to oppose the Bill. That is not in any sense accurate. What I desire to do is to raise certain doubts and anxieties which I feel, in the hope that they can be resolved by the noble Lord, Lord Harris of Greenwich, and the noble Lord, Lord Willis, in due course in this debate or in the later stages of this Bill. The first matter I must deal with is this—and this is perhaps the political consideration to which I referred. This Bill in fact imposes yet another restriction by law on the freedom of the Press to report fairly and accurately on matters which may be of interest to its public. That is something quite different from "in the public interest" which is referred to in Clause 6(2). I know of course that such freedom is very often abused. All I would say is that where we are seeking to impose yet a further restriction on that freedom a very strong case has to be made out to justify it.

So far as the anonymity of the complainant is concerned the argument, as I understand it, is that it is the fear of publicity that leads some young women who have in fact been raped to be frightened of coming forward. If that were so, I would entirely support the anonymity proposals. I only want to wonder for a moment whether the evidence really supports the proposition. The fact is that any woman wishing to make a complaint of rape has a fearsome ordeal to face. As has already been mentioned by the noble Lord, Lord Willis, she has to go to the police station; she has to make an original complaint to an officer there. She has to undergo the most personal and intimate medical examination and very often she has to undergo chemical tests. She has her clothing removed for scientific tests. She may have to attend an identification parade and come face to face with her assailant. She will certainly have to make at least one further statement to a different police officer, and very probably more than one other detailed statement. In all probability, she will have to go to give evidence at the magistrates' court and be cross-examined. Certainly she will have to go to the Crown Court and face cross-examination there. All these things are great ordeals, and I do not want to minimise them.

I am inclined to wonder whether it is simply the fear of seeing her name in the papers that in fact is the deterrent that causes women who have been the victims of this dreadful crime to be reluctant to come forward. I would have hoped that rather than bringing forward this Bill quite as quickly as has been done following the case of Morgan, it might have been possible to have considered that matter a little more carefully and perhaps to do a little more research, if that were possible, as to the real reasons why people who have been the victims of rape are, as we are told frequently, unwilling to come forward and make their allegations.


My Lords, if the noble Lord, Lord Wigoder, would allow me to interrupt him, I have one or two figures here. In 1974, the last period for which we have information, 1,052 cases of rape were known to the police, but only 410 came before courts. It may be that in some of the cases the police proved that it was a frivolous complaint, but it seems obvious that there was a large number of women. If the noble Lord would care to read the Second Reading debate in the other place he will see that the sponsor of the Bill quoted from a large number of letters from women—he had a huge postbag—and lie quoted a few which indicated that women were afraid of coming forward because of husband, family, church and so on.


My Lords, I appreciate and accept at once what the noble Lord, Lord Willis, has said about the figures. I am not absolutely certain that one ought to accept at its face value the statement of a woman who says that she has not come forward because of the fear that her name might be in the newspapers. There is room for considering whether it is not the whole ordeal, and not merely that part of the process, which is, unfortunately, the deterrent.

As the noble Lord, Lord Willis, himself has just indicated, I would add that it is quite inevitable, human nature being what it is, that there will be a very large number of false accusations of rape. I do not need to go into the details as to why that should be so. Again, I am inclined to wonder whether it may not be that the fear of publicity in the newspapers is a factor that they not deter some of the false accusations of rape from being made, and whether the discouraging of false accusations, rather than the discouraging of true accusations may not be perhaps a rather more potent factor which has come about owing to the fact that the name may be revealed in the newspaper. I accept that there are arguments the other way, but I venture to say there is scope for further consideration of this aspect of the matter.

The second matter I must raise on the question of anonymity is that it has been the experience of everyone who has practised in the criminal courts that the disclosure of the name of a complainant in the newspapers may give rise to the revelation of evidence which is available to help an innocent man and prevent his being wrongly convicted. I accept at once that in the Bill, in Clause 4, subsections (2) and (4), there is provision for saying that the name of the complainant shall be disclosed if the court is satisfied that it might give rise to the obtaining of such evidence. The difficulty I foresee is that one never knows when that is likely to happen. Certainly I have known, not only in rape cases but in cases of all descriptions, that in circumstances in which one had no reason whatever to think that information might be available to help a defendant, the publicity given either at the committal proceedings or sometimes during the trial has resulted in evidence coming forward which has materially helped to clear a man who was in fact innocent.

As to the anonymity of the defendant, I can only echo what the noble and learned Lord, Lord Hailsham, has said. I can see the logic of saying, "Well, if a complainant has her name kept out of the Press, why should not a defendant—at least a defendant who is acquitted, which is what in effect the Bill provides—equally have his name kept out of the Press?" What I find difficulty in deciding is where one stops, because I should have thought that, deeply embarrassing as it is for a happily married man, for example, to be falsely accused of rape and have his name appear in the newspaper, it is really no more embarrassing than for the policeman who is wrongly accused of perjury, or the Member of Parliament who is wrongly accused of shoplifting, or the company director who is wrongly accused of fraud. I find it very difficult to see where one is going to draw the line once one embarks on the process, upon which we appear to be starting in this Bill, of keeping out of public knowledge information either as to who complainants are or as to who defendants are.

I would only add, as a purely practical comment, that these provisions are not likely to be of any great value, certainly in a small community, because the information is bound to get round as to who a complainant is and as to who a defendant is. Indeed, even in rather larger communities, I am a little perturbed that if anonymity is preserved in this way suspicion may fall on people who have nothing to do with the case at all. If one reads that, "a 32-year old Latin school teacher in Camden Town was yesterday acquitted of rape at the Old Bailey", it is possible that suspicion might fall on people who had absolutely nothing at all to do with the case. I would hope that, if it were possible within the Parliamentary timetable, we might, as the noble and learned Lord, Lord Hailsham, has indicated, consider with some care whether we are not embarking on a rather slippery slope in including a provision that in certain circumstances the defendant's name should not be published.

My Lords, I come to the one other part of the Bill which causes me anxiety, and that is the question of cross-examination as to the previous sexual activities of a complainant in a rape case. Again, may I say at once that there is nothing, I think, more obnoxious than to hear counsel embarking on a roving expedition, without instructions, as almost invariably happens, into a complainant's private life, her previous, no doubt largely innocent, sexual activities. If I may say so, it is not only bound to be extremely painful and distressing to the witness, it is an obnoxious thing for counsel to have to do, and I think he recognises all too often that it is a demeaning task to have to perform.

What perturbs me a little is that, however demeaning and obnoxious the task might be, there are occasions on which, as a result, information comes forward which again is such that enables an innocent defendant to be acquitted. I am a little perturbed by a blanket provision in the Bill which, subject to special circumstances which I think are unlikely very often to arise, will prevent cross-examination of this nature at all and may give rise to difficulties, unfair difficulties, where defendants are concerned. If a defendant is saying in terms that a young woman consented to his advances, it may be relevant, and indeed I think it must be relevant, that on previous occasions she may in other circumstances with other men have consented to their advances. How relevant it is, what weight is to be attached to it, is, of course, a matter for the jury. But I should have thought it was just as relevant as a trial of a man, for example, for burglary, where his previous convictions for offences of dishonesty are relevant. I should have thought they were always relevant as a matter of law. We do not allow them to be given in a trial because it would be regarded as being so prejudicial as to make a fair trial impossible. Of course here we are considering the position of a complainant rather than the position of a defendant.

Perhaps I might add, in relation to the cross-examination as to the character of a complainant, that I think your Lordships will all know that, if in the ordinary way the defendant cross-examines a complainant as to her previous character, the previous character of the defendant becomes admissible in evidence. For some reason that I find not entirely easy to follow, there has always been an exception made in rape cases, with the result that a man of bad character, a man who has committed previous offences of rape nevertheless has complete freedom through his counsel to cross-examine a complainant as much as he likes about her previous sexual misbehaviour, if that be the right word, while he himself remains immune in return from any such cross-examination. I should have thought that there might be something to be said for looking at that rule and seeing whether there is any justification for it in present day circumstances.

I have said more than enough in what I think was intended to be a short debate. I fully accept that the sponsors of this Bill are desperately anxious, in the best of good faith, to help young women, or women of any age, who have undergone this dreadful experience, and to try to see that their suffering during legal proceedings is very much diminished. I am a little concerned lest we tilt the balance rather too far the other way and that, as a result, there may be the occasional case in which a person should be acquitted and is, in fact, innocent but, because of the provisions of this Bill, the necessary evidence may not be forthcoming. It is perhaps an unhappy chance that I am told that this afternoon on the Press Association tape outside it has been announced that a man who, in 1974, was sentenced to 12 years imprisonment for rape, and who has served two-and-a-half years of that sentence, has had his conviction quashed because the complainant has at last admitted that she was telling lies at the trial. I am concerned that we do not do anything in the course of this Bill to encourage further similar miscarriages of justice.

5.3 p.m.


My Lords, I entirely agree with the noble Lord, Lord Willis, for whose presentation of this Bill in such clarity we are greatly indebted, that there has been for some time much public concern in regard to the whole law of rape, and much public anxiety as to whether it would be desirable to introduce some rule as to the anonymity of complainants. I am sure that at the time of the Morgan case, which has been mentioned, there was much misunderstanding and there were many misconceptions. I think, therefore, that the Home Secretary was greatly to be commended for having appointed the Advisory Group. He is further to be congratulated in having secured the services, as Chairman of the group, of Mrs. Justice Heilbron.

The group was set up in July 1975, and with commendable response to a request that their consideration should be urgent the Committee submitted a unanimous report in November 1975. A reading of that report shows that the speed of its production was not achieved by any sacrifice of the thoroughness of consideration. I should respectfully like to express my admiration of the quality of the report, of the thorough appreciation and perception of the problems involved and of the wisdom of the suggestions contained in the report. I find myself therefore in agreement with the reasoning, with the various analyses and, subject to one or two rather important qualifications, I am in agreement with those proposals that I regard as being the major ones.

I warmly commend the whole summary in the early part of the report of the cases that were reviewed and of the balanced assessment of the various relevant considerations leading to the view that there should be now some declaratory legislation, and that it should be on the lines that now find expression in Clause 1 of the Bill. I think that as a result of Clause 1 public misconceptions could now be removed. We all support the fundamental, the cardinal principle that in a criminal case there must not be guilt unless it is shown that there was an evil intention; or to use the words quoted by the noble and learned Lord, Lord Hailsham of Saint Marylebone, what the lawyers call mens rea.

As applied to the law of rape that means that the prosecution must prove—and there should not be a conviction unless it is proved—not only that there was unlawful sexual intercourse with a woman who did not consent to it, but furthermore that the accused knew that she was not consenting or was reckless as to whether or not she consented. I think therefore that Clause 1(2) adds a valuable contribution to the law in its declaration; and here I think this declaration follows very closely the reasoning in the speech in the Morgan case of the noble and learned Lord, Lord Hailsham. I was not concerned in that case at all, but very respectfully I agreed with his speech. I think it is important to declare that if a jury has to consider whether a man believed that a woman was consenting, the presence or the absence of reasonable grounds for such a belief is a matter to which the jury is to have regard in conjunction with any other relevant matters in considering whether he so believed. Therefore if Clause 1 stood by itself I think it would be valuable to have this Bill.

I pass to Clause 4, which deals with anonymity. In view of the time I will content myself with briefly expressing concurrence with the conclusions reached by the Committee and by Mrs. Justice Heilbron. Of course all of us, whether within the law or as members of the public, believe in the value and virtue of publicity of proceedings in courts of law; of course we do! But I think the Advisory Group approached this matter while recognising that and saying that here was a matter that required a balance of considerations, and I think that on balance the case is made out to have anonymity for complainants. No one can be sure as to why it is that some women do not report. It may be because of all the essential features connected with a report, as opposed to the anxiety of being a witness in court—the matters referred to by the noble Lord, Lord Wigoder. But I think that on balance the case is made out for anonymity and therefore I agree with the scheme of Clause 4.

My Lords, if there is anonymity for complainants (though this was not recommended by the advisory group) I myself see no reason why there should not also be anonymity for an accused person who is acquitted. Of course, if he is convicted there is publicity; but there may be great anguish, there may be great harm done, to a man who has been wrongly accused and is acquitted. So I personally take no objection to the additional provision in this Bill, inserted in another place, to give anonymity also to accused people who are acquitted.

My Lords, what I wish mainly to say—and I think I can say it with brevity—is in regard to the evidence given in these cases, and in particular to the provisions of Clause 2 of the Bill. In rape cases, as in other cases, problems often arise as to what is the result of evidence given by a complainant or a witness in answer to questions in cross-examination. If evidence is given in answer to questions, is the evidence to be regarded as being merely collateral to an issue in the case, in which event the accused cannot call evidence to contradict the denials, or can evidence be called to contradict the complainant?

Another problem that arises is in regard to the application of the appropriate section of the 1898 Act. If questions are put, what is the position of the accused in regard to having his own character put in issue by the prosecution? I would suggest to your Lordships that those are matters with which judges are constantly called upon to deal, and that they are well acquainted with the points that arise. I do not think that there is any need to have any additional statutory provision in regard to that matter. At the end of paragraph 130 of the report, the Committee refers to the fact that the Criminal Law Revision Committee had been looking into this matter and that they reached the compromise conclusion that if the main purpose of the cross-examination was to attack the credibility of the prosecution witnesses, the accused's character should be let in; whereas if the attack was necessary to put forward the defence by asking questions relevant to the issues in the trial, it should not. I think that deals with the matter satisfactorily.

The main matter dealt with in Clause 2 is the limitation of questions put to a complainant as a result of these very complicated provisions in Clause 2. Here, I think one has to consider what is the role, the position, of a judge at a trial. Surely the prime duty and responsibility of a judge at a trial is to ensure that in everything that is stated or in any questions that are put there is relevancy to the issues that are raised. That is one of the main functions of a judge. It may well be, as the noble and learned Lord, Lord Hailsham, has said, that judges in some of these cases have not done what they ought to do. If that is so, I do not think that makes out a case for having these additional statutory provisions. Judges are constantly concerned with these questions of relevancy—"What is the relevancy of that question?", "How is it relevant to the case for the prosecution?", "How is it relevant to the case for the defence?" or "How is it fair to a witness?" Judges have to try, should try, and I think do try, to protect witnesses.

In view of that, what is the scheme of Clause 2? What it says is that there shall be certain matters which are to be called "restricted matters" and there is a definition of "restricted matters". Before you can ask a question about restricted matters you must get the leave of the judge; you must apply to the judge. Then subsection (2) of Clause 2 says what the judge is to do: … on such an application the judge shall give leave if and only if he is satisfied that the restricted matters in respect of which the application is made are of such relevance to issues arising in the trial that it would be unfair to the defendant to exclude evidence of those matters. Is that not already part of the law without having this enacted? Relevancy is all the time to be considered by the judge. Subsection (3) goes on to tell the judge how he is to consider relevancy. What he is to do is to consider whether he is satisfied, that there is such a striking relationship between—

  1. (a) a way, or matters connected with a way, in which the complainant is alleged to have behaved on that occasion; and
  2. (b) the restricted matters in respect of which the application is made or matters connected with those matters."
Again I present the consideration to your Lordships that judges really ought to deal with these matters without the necessity of having this rather elaborate additional statutory definition of their duties. Judges are constantly dealing with the phrase "striking relationship" which is in this subsection and which I think is derived from words in the Report where somewhere it says "strikingly similar". Over and again, it seems to me that judges deal with this situation.

Sometimes a question arises as to whether two charges are to be heard together. The fact that a man has committed or may have committed one crime on one date may provide no sort of evidence that he committed a similar crime on another date. It may be most unfair to try the two charges together. But there may be circumstances under which there is such a close or striking similarity between one fact and another, such an underlying unity between the two, that proof of one fact could possess probative value in considering the other, what lawyers call "similar fact evidence". There may be specific features causing two accusations to bear a striking resemblance. The judge has to ask: Is there a probative value and is that probative value one that clearly outweighs the prejudicial effect? The judge and lawyers always try to be careful to see that you do not merely give a dog a bad name and then hang him.

This line of thinking leads me, in conclusion, to ask those sponsoring the Bill to consider whether it may be possible to achieve all its objects while leaving out Clause 2 and any other part of the Bill that is consequential upon Clause 2. The line of reasoning of the Report, the philosophy of the Report, I think would accord with the line of thinking of any judge called upon to rule in the circumstances. But is it really necessary to have the two pages of print which are in Clause 2? Are they rather complex? On first reading do they seem complex? On a second reading may subsection (4) not seem a little more than complex?

I am not hostile to this underlying thought that governs Clause 2 and these proposals regarding evidence, but I wonder whether they may not prolong a trial; whether they may not cause endless argument, additional difficulties for counsel for the prosecution and defence; and whether if judges face up to their duties they would deal with these matters without the necessity of having one or more rather complicated pieces of legislation. My summary therefore is that I hope your Lordships will give a Second Reading to this Bill. I am in sympathy with all parts of it. I am not out of sympathy with the clause with which I have been dealing, but I ask those dealing with this Bill, and its virtues and advantages, whether it might proceed even without Clause 2.

5.22 p.m.


My Lords, I, too, will do my best to be brief on this matter. It has become clear in this debate that matters of considerable complexity and importance have been raised. I think we should turn our attention—I will endeavour to do so in a moment or two—to how we can do justice to these issues.

Rape is, so far as I can imagine it, the worst of a whole group of offences which we call sexual offences. They have a very great deal in common in that they are surrounded by primeval feelings, superstitions and even, unfortunately at times, ribaldry. They create a complete emotional climate of their own, and in this way they are, rightly or wrongly, different from other crimes and offences. There are two directions in which one can move in dealing with this situation in which there are a whole group of offences which are different in kind from others.

One is that special arrangements can be made for dealing with them. That is what this Bill really does. The second is that efforts can be made to try to lessen the differences, if possible, between the two classes, possibly by trying to change the opinion of people about them. Here the possibility obviously is one which was discussed in one paragraph of the Heilbron Group Report: that you can do away with the concept of sexual offences altogether, and in matters like sexual assault or rape you can move them in to the whole field of the law of assault. There is a lot to be said about that.

The Working Party of the Sexual Law Reform Committee on which I served for three years came to the conclusion that it would be a good thing to do this. It said: The elimination of the 'sexual offence', and the assimilation in law of assaults et cetera having a sexual element with those which have not would be highly desirable because of the beneficial effect this would have both upon policy and on I court attitudes generally: at present, it is within the experience of some of us that 'sexual' cases are sometimes handled more emotionally than 'non-sexual' crimes of a more objectively serious; and anti-social nature. The report goes on to say that they are under no illusion that over-night one would change public attitudes.

Rape by any other name would smell as foul, but we might be able to remove some of the problems which go with the publicity in dealing with these matters. I am rather sorry that the Heilbron Group did not feel that they had the space or the time to go into this matter rather more fully than they did in that one paragraph, although I accept absolutely that they would have had to widen their terms of reference much further than they were to a certain extent in dealing with an emergency situation. I do not blame them; I merely regret it.

Lest your Lordships should think that the idea I put forward is merely a coldly analytical one, which could only be put forward by a man who did not have the emotional feelings which attach to the situation of rape, I would say that there are a number of people, rape counsellors and people dealing with these cases, who feel the same way. If I may quote just one, the Director of Rape Counselling at Coney Island Hospital, a woman, says: Rape is not an act of sex. Its an act of violence, with sex as a prime weapon. Only when you understand that do you understand what the victim has experienced. She is seeking help because she was almost killed"; and she goes on to argue that for the assimilation of sexual cases in cases of assault, it removes the sniggering atmosphere which always, regrettably, surrounds sexual cases, or would go some way to do so. But, my Lords, having rejected that approach—and I see why—I think that this Bill is a very good and very necessary Bill and I support it. It takes the other step. It tries to deal with the special circumstances as they are.

We have now had a very interesting debate in which every single speaker has contributed a lot and there are some very tricky questions, obviously, in this Bill which still remain to be dealt with. There seem to be two fairly outstanding ones. One is the anonymity of the defendant. We have heard differing views on this from the noble and learned Lord, Lord Morris of Borth-y-Gest, and the noble and learned Lord, Lord Hailsham. Perhaps I might point out, as Mr. Rees-Davies pointed out in Standing Committee F in another place, that the reason why this is different from the defendant's being accused of any of the other nasty and horrible crimes which would be a disaster for him if he were falsely accused, is that in a very great many cases his defence is that in fact he was doing some- thing which is not illegal but is widely considered to be immoral; that is his defence. And if in court he says, "Yes, I had sexual intercourse with this woman but she consented", he is having to bring out in court something which is really no affair of the law and, I would say, no affair of the general public, in order to rebut this charge. That is what makes it a different situation from that of the defendant in other types of case. I am not saying that this is an overwhelming consideration, but it is a distinction and a dictinction which should be considered.

The second, and last, point on the Bill which I want to make is, again, the question of cross-examination and the protection of the innocent. Here the Heilbron Report says, in paragraph 14, the orthodox words on the subject: Whilst attempting to rectify an imbalance of unfairness to the complainant or the alleged victim, we must ensure, so far as humanly possible, that no innocent man is wrongly convicted. We further believe that it is highly undesirable that guilty men should be wrongly acquitted. That is the balance. It is highly undesirable that guilty men should be wrongly acquired, but we must ensure so far as humanly possible that no innocent man is wrongly convicted.

My noble and learned friend Lord Wogoder has raised important matters, which we ought to go into rather more fully. But we have reached the stage, at the end of a very long and difficult Session, where it appears likely that if we amend this Bill there may be insufficient time to deal with it. This is a most unsatisfactory situation, although I do not think that anyone is more guilty than anyone else. Even in a better Session than this, there are some Bills which arrive late. But I do not think that we should be put in the position of having to pass unsatisfactory or badly drafted laws, just because Bills reach us at this moment. We have an overriding duty to see that the laws which we pass here are as good as we can make them.

So I appeal to the noble Lord, Lord Willis, and to the Government to get together in the immediate future—by which I mean tonight or tomorrow—and consider the possibilities for giving us a reasonable Committee stage in this House. What we could do is take the Committee stage of this Bill in a Select Committee upstairs. There are a number of noble Lords, including some who are learned in the law, who would be as well employed on that as in sitting through the discussion on Amendment No. 195D of the Aircraft and Shipbuilding Industries Bill. That would be one way of saving time, and would perhaps even give us an opportunity to pass Amendments and send the Bill back to another place. Otherwise, I seriously think that we should consider carrying on and making amendments to this Bill as best we can and doing the work, whether upstairs or on the Floor of your Lordships' House. Then, having ironed it out, we should see whether the Government can give us a definite commitment that we might get some time early in the next Session to pass the whole Bill again, once all the donkey work has been done.

I know the Government say that they have very little time, because of the devolution Bill and the European Parliament. But once the main work has been done—and by that time it will have been done in the Committees of both Houses—and given that it appears that your Lordships' House may have nothing to do at the beginning of the next Session, which will be a nice change, it may be possible to work out a timetable which would give satisfaction. I do not think it is right that we should not be able to consider very thoroughly the serious matters that have been raised this evening and, if necessary, amend this Bill. I do not expect an answer tonight but I implore the noble Lord, Lord Willis, and the Government to say that they will consult and consider.

5.33 p.m.

The MINISTER of STATE, HOME OFFICE (Lord Harris of Greenwich)

My Lords, I am glad to be able to assure the House of the Government's support for this Bill, and I am particularly glad that it has been so favourably received this evening. It is appropriate that the noble and learned Lord, Lord Hailsham, should have spoken, because of his involvement in the case of Morgan; and, indeed, that the noble and learned Lord, Lord Morris of Borth-y-Gest, should have been able to participate, because of his role in the case of Sweet v. Parsley. I hope that both noble and learned Lords will acquit me of any discourtesy if I do not deal with their points this evening, because of the problem of which we are only too well aware. To the noble Lord, Lord Beaumont, may I say that the usual channels were present when he made his points, and I am sure that they have taken notice of what he said.

Fortunately, rape is not a common crime in this country. During the years 1973 to 1975—the last three years for which statistics are available—there were respectively 998, 1,052 and 1,040 offences recorded as known to the police. That point was touched on briefly in an intervention by my noble friend Lord Willis when he raised one particular year of statistics. In those three years, 433, 412 and 409 persons were tried before the Crown Court and of these 317, 318 and 321 respectively were found guilty. So it is not a very frequent crime nor one which, it would appear from the statistics, is increasing dramatically. But, even so, the number of cases is a serious matter and we do not know the number of offences which are never reported to the police, for reasons about which we can only speculate.

Moreover, rape is a crime which causes particularly great distress to the victim and that can be accentuated by the proceedings which necessarily follow. I am sure that the House will bear in mind—and this point has been touched on in a number of speeches that have been given this evening—the human suffering which this offence can cause and the compassionate motives which have induced the Promoters of this Bill to bring it forward for your Lordships' consideration this afternoon.

As the House will be aware—and if it was not aware before this debate it will, certainly be aware now—there was undoubtedly a substantial amount of concern expressed in the media and in another place arising from the decision of your Lordships' House in the case of the Director of Public Prosecutions v. Morgan and Others. As a result of this, as my noble friend Lord Willis pointed out in his speech, the Advisory Group was appointed. The group reported speedily, as the noble Lord, Lord Morris of Borth-y-Gest, has pointed out. With great despatch they dealt with this matter and after a most thorough examination of the issues involved they reached the conclusion, which the Government endorse, that the decision in Morgan should stand. That was the case in which your Lordships' House held, by a majority decision, that a man ought not to be convicted of rape unless the prosecution proves that he intended to have sexual intercourse without the woman's consent or recklessly as to whether she consented or not. The Advisory Group found that to convict of a grave crime a man who did not have a guilty mind would seriously offend the principles of justice as they have been developed over the centuries by Parliament and the courts.

Nevertheless, despite their conclusion that the decision in Morgan's case is right in principle, they decided that legislation was required to clarify the law governing intention in rape cases, for two main reasons. First, it would be unfortunate if a tendency were to arise to say to the jury that, "A belief however unreasonable that the woman consented entitled the accused to acquittal". Secondly, it would in future cases be possible to argue that the question of recklessness had not directly arisen for decision in Morgan's case because of the form of the questions certified, and so as to avoid any possible doubt the ruling on recklessness should be put in statutory form. That is what Clause 1 is designed to achieve.

The clause does not attempt a comprehensive codification of the case law on rape. It aims rather to provide a definition which is an adequate restatement of the law as it has developed. Existing case law will be relevant when considering the new definition. As the House is aware the law on sexual offences is being reviewed by the Criminal Law Revision Committee as part of their programme of codification and any more comprehensive definition will be a matter for them to consider.

The Advisory Group also made other proposals about the procedure in rape cases, both with regard to the type of evidence which can be adduced and also concerning the extent to which an attack on the credibility of the complainant or witnesses for the prosecution should let in the accused's character. As they said in paragraph 85 of their report: Much of the criticism we have received is directed not so much against the substantive law of rape or the particular decision in Morgan as against the practice and procedure followed in rape cases. Clause 2, which gives effect to the Advisory Group's proposals on evidence, is accordingly designed to prevent "mud-slinging". It seeks to go to the root of the problem by reducing the occasions on which the defence can legitimately cross-examine or adduce evidence about the sexual history of the complainant with men other than the accused. The Advisory Group, who were much concerned about the distress suffered by women cross-examined in this way (the noble and learned Lord, Lord Hailsham of Saint Marylebone, took the view, I believe wholly rightly because I think that this is an important matter, that there could be significant distress in cases of this kind) or about whom evidence concerning their private life was adduced, advised the course set out in Clause 2, since they felt that: … some general restriction needs to be placed on the introduction of the complainant's private sexual history, and this can only be achieved by direct regulation of the matter and not by the indirect threat of the introduction of the accused's bad character. Such a threat is of no avail if the accused has no previous record, as is frequently the case. This, with respect to those who have raised the point, is a matter of some substance.

Clause 2 of the Bill seeks to give effect substantially to the Advisory Group's proposals, with such minor modifications as seem necessary. In the course of its passage in another place some suggestions were made about the clause but none, in the Government's view, improved upon it. It is our hope that the House will accept the broad principles of the Heilbron recommendations on the issue as the most effective way of curbing the unfortunate practice of "mud-slinging", which in effect is putting the complainant herself on trial.

Turning to the question of anonymity, the Advisory Group's view was that, ' exceptional circumstances apart, complainants should be anonymous at trials for rape offences, and the Government endorse this recommendation. Accordingly, Clause 4 provides that, subject to minor modifications, after a person has been accused of a rape offence no matter likely to lead members of the public to identify a woman as a complainant in relation to that accusation shall be published in a written publication available to the public or a broadcast except by direction of a judge, given under the clause. In subsection (3) the Bill deals with special cases which could cause difficulty if there were no possibility of a judge lifting the restrictions, and breach of the restrictions on publication will be a criminal offence for which the maximum penalty will be a £500 fine.

The noble Lord, Lord Wigoder, who has, I know, substantial experience of matters of this kind, said that he always viewed with some degree of anxiety further restrictions which were imposed upon the freedom of the Press. I believe that the noble Lord is right. A clear case has to be made out before further restrictions are introduced. However, I think that the case here is a very substantial one. At the time that there was a great deal of publicity over the Morgan case and a great deal of public discussion I spoke to a substantial number of operational detectives both in this country and in the United States on precisely this issue. There was very nearly unanimity of view. I do not say that the House should be persuaded exclusively by this as a piece of evidence. Nevertheless, I am impressed by the fact that these detectives took the view that this was a matter of high importance. Because of the anxieties in the minds of these women it raised in their minds grave questions about the accuracy of the criminal statistics in this field and they believe that a change in the law would be highly beneficial.

I am impressed by that. Also the fact that the Association of Chief Police Officers and the other police organisations take a similar view of this matter. I repeat that I do not regard this as a conclusive piece of evidence which should persuade the House to change the law on this matter, but I believe it is a piece of evidence which should be taken very seriously, as I am sure it will be.

We viewed with great respect the Heilbron advisory group's conclusions on anonymity for defendants before conviction, not least because it means that defendants in rape cases will enjoy a benefit which no other defendant enjoys. That was a point made by the noble and learned Lord, Lord Hailsham. However, having listened to the arguments in another place, the Government decided that they should accede to the wishes of the majority in the Standing Committee, and introduced their own Amendment to replace a defective one inserted in Committee and to give defendants anonymity. This Amendment, which was carried, makes provision on similar lines to Clause 4, subject to certain necessary exceptions. It would allow a defendant to opt for the restrictions on publication to be removed by making application, either to a magistrates' court before his trial commences or to a judge of the Crown Court at his trial. On conviction, his name would of course no longer be protected and the restriction would cease to apply, as the noble and learned Lord, Lord Morris of Borth-y-Gest, pointed out.

It only remains for me to add that this Bill will be of great value in clearing up some of the misconceptions which have arisen from Morgan. It will also protect women who report rape from being subjected to an unreasonable ordeal in these trials. I hope your Lordships will give this Bill a Second Reading and see it on its way to the Statute Book.

5.46 p.m.


My Lords, I should like briefly to thank noble Lords, not only for staying but for the brevity and clarity with which they spoke. I have never been able to dissociate clarity from brevity; I think they go together. I should like to assure your Lordships that I shall take into account all the points which have been made. I have the greatest sympathy with the point expressed by the noble Lord, Lord Beaumont of Whitley, and I shall certainly consult with my noble friend Lord Harris of Greenwich about this matter, although I do not think any promises can be made in that direction.

Some most valuable points have been made by noble Lords in different parts of the House. When I took on this Bill I felt that I was walking over broken glass in bare feet, because I knew that I should be surrounded by some of the most eminent legal brains in the country and that my only connection with the law is writing television police programmes. But I hope that, with your Lordships' help, we shall eventually get a good Bill and speed it on its way so that it may be passed this Session.

On Question, Bill read 2, and committed to a Committee of the Whole House.

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