HL Deb 19 March 1998 vol 587 cc820-60

3.39 p.m.

The Parliamentary Under-Secretary of State, Home Office (Lord Williams of Mostyn)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(Lord Williams of Mostyn.)

On Question, Motion agreed to.

Lord Bridges moved Amendment No. 80: After Clause 26, insert the following new clause—

("Publication of telephone conversations


.—(1) Subject to subsection (2) below, a person who publishes, or causes to be published, a telephone conversation made by means of a public telecommunication system shall be guilty of an offence. (2) Subsection (1) shall not apply in a case where—

  1. (a) the recording of the conversation did not contravene the provisions of the Interception of Communications Act 1985, and all parties to the telephone conversation in question have given their consent to publication;
  2. (b) one of the parties to the conversation is a journalist and the conversation was undertaken as part of his professional investigations;
  3. (c) the conversation was recorded by the employer of one of the parties to the conversation ("the employee") as part of a routine procedure for recording telephone conversations within the workplace provided that—
    1. (i) the employee has been made aware in writing of this procedure, and
    2. (ii) publication is necessary for or in connection with the conduct of disciplinary proceedings;
  4. (d) the conversation was conducted between persons acting on behalf of a firm and one of its clients and the recording was undertaken to provide evidence of a commercial transaction; or
  5. (e) it can he shown that publication of the conversation is in the public interest.
(3) A person found guilty of an offence under subsection (1) shall be liable—
  1. (a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding level 5 on the standard scale, or to both;
  2. (b) on conviction On indictment, to imprisonment for a term not exceeding six months, or to a fine, or to both.").

The noble Lord said: My Lords, in moving this amendment, which stands in my name and that of my noble friend Lord Monson. I should explain that this is a substantially revised version of the amendment which I moved in Committee, but that it retains the same objective: namely, the creation of a new criminal offence, the publication of the transcript of a clandestinely monitored telephone conversation. It is already illegal to make such interceptions, save under a warrant issued by the Secretary of State in carefully defined circumstances, but it is not at present illegal to publish the transcript. Thus, the amendment is designed to close a loophole in existing legislation.

Replying to the debate on 13th February, the noble Lord, Lord Williams of Mostyn, said that my proposal covered a wide area and gave rise to a number of matters which the Government were already considering in the context of EC Directive No. 97/66/EC of 15th December 1997 and that he thought it would be premature for me to press my amendment, which he invited me to withdraw meanwhile. I agreed to do this and said that I would study the directive, reserving the right to present it again on Report, which I now do in revised form.

There is no conflict between this amendment and the EC directive; rather the two texts are complementary and mutually supportive. In particular, Article 5 of the directive states the intention to safeguard the privacy and confidentiality of telecommunications, which is also my main objective. There is a similar provision in Article 8 of the European human rights convention. The problem that the Government have with the directive is that it covers all telecommunications, whereas our own law, the Interception of Telecommunications Act 1985, is less extensive in its coverage, applying only to telecommunications which pass through the public networks. Privatisation and the advance of technology mean that a substantial sector is thus left uncovered. Therefore, amendment of the 1985 Act will he required before we can implement the directive, and we know that a review of that Act is already in progress.

Meanwhile, the Government have exercised their right to derogate from implementation of the directive until October 2000, in respect of Article 5, as is permitted by the text of the directive. I cite these matters simply to illustrate that I can see no impediment in the directive to the passage of my amendment, as I rather think the noble Lord, Lord Williams, implied when he spoke on the earlier occasion. That was, I suggest, something of a red herring, although I understand his wish not to complicate other matters which require consideration as a result of the directive. However, I submit that my amendment would not be in conflict with the directive. Nevertheless, I am grateful to the noble Lord, Lord Williams, for drawing my attention to the directive, and more particularly for his kindness in arranging a meeting at the Home Office on Monday morning when we were able to discuss the question in more detail. As a result, I have endeavoured to meet the objections and difficulties mentioned at that meeting in the substantially revised version of the amendment which is before the House today. I shall speak as briefly as I can to those changes.

Subsection (2)(b) of my earlier draft contained a provision that if a journalist wished to question a person in public life about some alleged malpractice, and for the greater accuracy of his report wanted to record the conversation, he should first make known his intention. The noble Lord, Lord Williams, told me that he thought that provision would hinder legitimate investigative journalism, as the person approached would surely terminate the conversation abruptly if he heard that a recording was to be made. To meet this objection, which does have some force, I have much shortened the subsection so as to remove the proviso regarding recording altogether: the exemption now covers all conversations by journalists. I hope that the noble Lord, Lord Williams, will find this satisfactory. I am not particularly happy with a law which places journalists in a privileged position in relation to other citizens, but I cannot think of another way of meeting the noble Lord's objection.

For the greater certainty of knowledge, I should add that there is a clause in the voluntary code of practice, number 8, which covers the matter. It says: Journalists must not obtain or publish material obtained by using clandestine listening devices or by intercepting private telephone conversations".

In parenthesis, I do not suppose that that clause need necessarily apply to transcripts of on-the-record telephone conversations, although that is not made clear in the code. My intention is to give legal effect to clause 8 of the code, which I have just quoted. Indeed, the code, my amendment and the EC directive share a common objective. If we agree to adopt the amendment, we shall be able to transpose that passage of the code into statute law and to facilitate implementation of the EC directive at the same time.

Some noble Lords may feel that matters are better left as they are, on the basis of a voluntary code. Indeed, the noble Lord, Lord Wakeham, spoke eloquently on those lines in a recent debate. I should add that I informed the noble Lord yesterday of my intention to refer to his intervention this afternoon. However, I do not see that as being the route we ought to follow. I say that because an editor may more readily overlook the effect of a code, which he can always argue about at length afterwards; but he cannot so readily ignore the force of the law.

As I suggested in my earlier speech, this is an area where temptations are strong, where technology is constantly advancing and making interceptions easier. I submit that safeguards are needed to strengthen the resolve to remove malpractice as far as possible. After all, we are talking about a fundamental matter; namely, the right of the citizen to enjoy privacy of personal communication. We should be proud of that right and exert ourselves to protect it. I doubt whether that right would be fully protected by the code, which does not, I think, enjoy the confidence placed by the public in statute law.

There are some other changes which I shall mention more briefly. Subsection (2)(c) is followed by a new paragraph (d) to make it clear that records of telephone conversations in a City dealing room may, if necessary, be used to verify details of a particular financial transaction. It was my intention that that should be covered by way of the original wording, but the matter is now set out more clearly in this version of the amendment.

A final change is the omission of the former subsection (2)(d), which was designed to authorise the Director of Public Prosecutions to make use of these recordings in criminal proceedings if he thought it desirable. It has been pointed out to me that this practice is precluded by the terms of the Interception of Communications Act 1985, so I have excised it from the amendment. No doubt the matter can be examined in more detail in the review of that Act which is now in progress. Indeed, there may perhaps be a case for lifting the total ban in certain cases so as to make use of intercepted material in particularly serious criminal cases.

I hope that the amendment in its revised form will be acceptable to the Government. The only aspect mentioned by the noble Lord, Lord Williams, which I have not attempted to cover relates to the doubts that he expressed about the word "publishes", which is to be found in line I of my amendment. As I understand it, in legal terminology this word has far-reaching effect, meaning: Communication to another, or others, by whatever means".

However, I hope that noble Lords will not be put off course by worries of that kind. What I am seeking to outlaw in this amendment is the violation of the principle of privacy of communication, which is a fundamental right.

Not having a written constitution, we have to take specific steps of this kind to achieve an objective which most other countries enjoy in a basic constitutional document. The principle already features prominently in international texts, some of which I have mentioned. We need this provision in our domestic law. It must he an anomaly that it is illegal to make a clandestine recording of a telephone conversation, but legal to publish it. That is the situation at present.

I am not interested in regulation of the press, nor do I favour it; but I am interested in the rights of the citizen. However, to meet any possible objection on that score, I have included a new subsection (2)(e) which would permit publication when it can be shown to be in the public interest. Thus, it would be for the courts of this country to determine whether or not an editor's decision to publish an illegal document was justified in the public interest.

I have gone a long way to meet the difficulties expressed to me by Ministers. I hope that this revised version will allay the problems which they foresaw. Should the Government still dislike it—the noble Lord, Lord McIntosh of Haringey, indicated to me that he thought it unlikely the Government could accept the amendment—I can conclude only that they wish to avoid the risk of ruffling feathers in Fleet Street, Wapping and other places of that kind. If that is their calculation, I put it to them that they will not be able to rely on goodwill from that quarter. I put it to the House that the sounder judgment is to regard this as a matter of principle, as I have tried to express it this afternoon. I hope that noble Lords from all sides of the House will take that view and join me in the Lobby if that proves necessary. I beg to move.

Lord Monson

My Lords, with his usual skill my noble friend Lord Bridges has taken what was already a worthwhile and desirable Committee stage amendment and made it even better. I am happy to support it. I am only sorry that more noble Lords did not add their names to it given that surely almost all of us in the Chamber must support its basic objectives. As I said in Committee, a generation or so ago those who eavesdropped, peered through keyholes or steamed open and read other people's letters were considered beyond the pale. Anyone who profited financially from such reprehensible activities was considered the lowest form of human life. Sadly the old decencies are vanishing which is why we need an amendment such as this, even though it covers only one aspect of invasion of privacy. I hope your Lordships will support it.

Lord Renton

My Lords, although we should always be reluctant to create new criminal offences I consider that the noble Lord, Lord Bridges, made out a strong case for this one. Surely, confidentiality of telephone conversations is essential for various reasons—I put family reasons first—including various professional reasons. For example, a doctor having already examined a patient may feel it necessary to telephone him instead of visiting him. Surely that telephone conversation should be confidential. I should have thought that in the legal profession it is highly desirable that conversations between solicitor and client should be protected in this way, and sometimes—this does not often happen because barristers act through solicitors—even conversations that barristers may have either with solicitors or even occasionally with a lay client deserve confidentiality. I am not a businessman but there are eminent businessmen on your Lordships' Benches. There must be many occasions when it is in the public interest as well as the private interest that business conversations should be protected. There is no other way that I know of protecting them. Lest anyone thinks that we are going too far in applying the principle of protecting privacy, I would say that this is a limited step in that direction but a highly necessary one.

Lord Henley

My Lords, I start by welcoming the noble Lord, Lord McIntosh, to deliberations on the Crime and Disorder Bill as I gather he is to respond to this amendment. We see him for the first time on what I now reckon to be the eighth day of the passage of this Bill through the House. I hope that he enjoys the experience in part.

I did not speak on this amendment in Committee but I listened carefully to what the noble Lord, Lord Bridges, said on that occasion and I certainly studied with some care the response of the noble Lord, Lord Williams of Mostyn, for the Government. I have considerable sympathy with the ideas behind the amendment. Like my noble friend Lord Renton and the noble Lord, Lord Monson, I am totally opposed to the idea that secretly recorded telephone conversations should be published by the newspapers or other outlets. I believe that people have a right to confidentiality. I think that most people are agreed on that. I am sure that the Government will also be the first to say that they too agree that in the main such conversations should not be published.

However, as the Government explained on the third or fourth day in Committee, this matter will, I understand, be partially dealt with by, I believe, the 1995 data protection directive and also by the Data Protection Bill currently proceeding through this House. There are difficult matters here which relate on one side to questions of privacy and on the other to matters concerning both public interest and press freedom. At this stage I want to listen carefully to the Government's response on how they see these matters being dealt with by the directive and by the Data Protection Act when it finally reaches the statute book. I hope that they can give convincing reasons as to why an amendment of this kind is not the appropriate way forward. I shall listen carefully to what the Government have to say before making up my mind on how I wish to proceed, and how those on these Benches who take advice from me wish to proceed, once the noble Lord, Lord Bridges, has decided what to do about his amendment.

Lord McIntosh of Haringey

My Lords, I start by expressing my gratitude to the noble Lord, Lord Bridges, for coming to the Home Office early on Monday morning to discuss the matter with my noble friend Lord Williams and myself, and for the care that he has taken in his revision of the amendment to take account of some of the things we pointed out to him at that time. I assure him that we listened carefully to what he had to say too. As I have already indicated to him informally that we shall not be able to accept the amendment, I hope the House will forgive me if I give my reasons in some detail.

The core of the amendment is contained in the proposed new subsection (2) and in the provisions for exceptions to the offence of publishing or causing to be published a telephone conversation. The proposed new subsection (2)(a) refers to contravention of the Interception of Communications Act 1985. This is technically deficient because there is currently no offence of recording a conversation made over a public telecommunications system provided one or more parties consents to the recordings, under Section 1(2)(b) of the Interception of Communications Act. There is no offence at all as regards recording on a private network.

The proposed new subsection (2)(b) refers to a situation where one of the parties is a journalist and the conversation is part of his investigations. The noble Lord reminded us that his Committee stage version of the amendment would have required the journalist to make clear to his interlocutor that the conversation was being recorded or conducted with a view to publication. We pointed out that that would make investigative journalism virtually impossible. The noble Lord recognised that point. This version is a step towards protecting investigative journalism but it does not protect a journalist who is listening in to a conversation between two other parties without their knowledge or consent and who would not be caught by the industry code of practice provided he could show that he was acting in the public interest.

The proposed new subsection (2)(c) refers to conversations recorded by an employer of one of the parties, as part of a routine procedure for recording telephone conversations within the workplace". Anyone who listens to commercial radio and the advertising of financial services on it will know that it is a common occurrence for someone to say that conversations may be recorded for the protection of the public. The provision in this subsection goes further than the EC telecoms data protection directive which allows legally authorised recording of communications in the course of lawful business practice for the purpose of providing evidence of a commercial transaction or of any other business communication. The amendment would prohibit an employer using recorded material as evidence of a commercial transaction. I remind the House that court proceedings would constitute publication.

The fourth part of subsection (2) refers to when the conversation is between a firm and its clients and the recording is made to provide evidence of a commercial transaction. It replaces paragraph (d) which was contrary to Section 9 of the Interception of Communications Act which expressly prohibits the use of any intercept evidence gathered under an IOCA warrant in any court. No exception is made for the Director of Public Prosecutions or anyone else. The new subsection attempts to accommodate acceptable practices in the financial services sector. But since we do not have a legal framework for recording, that is undesirable.

Paragraphs (c) and (d) would not amount to implementation of the Telecoms Data Protection Directive. We would therefore have to legislate again by October 2000. We would need to establish a legal framework for the recording and publication of communications on public and private networks. This requires time for careful consideration and consultation. The proposed amendment would outlaw acceptable recording and publication practices by omission rather than intent.

I recognise, as the noble Lord, Lord Henley, recognised, that the amendment of the noble Lord, Lord Bridges, raises complex issues of privacy, public interest and press freedom. The noble Lord made it clear that his principal objective is to mark limits of acceptable press behaviour. We believe in a free press. We need to be very careful to balance properly the right to privacy with the right of freedom of expression. As we have said many times, we prefer effective self-regulation of the press to any statutory control or a law of privacy. As the noble Lord, Lord Bridges, acknowledged, his proposed amendment would be one step towards statutory control.

The newspaper industry code of practice, on the basis of which the Press Complaints Commission resolves complaints, already requires that, Journalists Oust not obtain or publish material obtained using clandestine listening devices or by intercepting private telephone conversations unless it can he demonstrated that this is in the public interest". The Government are committed to self-regulation and expect the press to keep to both the letter and the spirit of the code.

As I have said, another difficulty is that the amendment cuts across our implementation of Article 5 of the EC Telecoms Data Protection Directive. As my noble friend Lord Williams said in Committee, we must implement this article by October 2000. The article requires member states to ensure via national regulation the confidentiality of communications and in particular to prohibit the listening, tapping, storage and other kinds of interception or surveillance of communications by people other than the users without the consent of the users except when legally authorised.

Accepted recording practices are not explicitly covered by UK law at present. There is no UK legislation for recording on private telephone networks. It will be necessary, as part of implementing Article 5 of the directive, to establish a framework for recording tapping of communications whether on the private or public network. So we need to consult widely and to work closely with the relevant industries to ensure that we get the legislative framework right.

I believe that our approach to this is properly expressed in the light of the Data Protection Bill and the Human Rights Bill. We have to be very clear about the precise policy intended. Our fundamental objection to the amendment is that it would undermine our support for press self-regulation. I am rather sorry that the noble Lord, Lord Bridges, sought to impute motives to the Government in supporting press regulation. We are not doing so in fear of the disapproval of Fleet Street or Wapping, or in search of their support. We are doing so because we believe that that is right in a free society. The amendment would be a statutory milestone too far. I do not dismiss the concerns of the noble Lord. The Government take the matter very seriously but we do not feel that the amendment is the right way to tackle the problem. I hope that the noble Lord will not press the amendment.

Lord Bridges

My Lords, I am grateful to all those who have spoken and to the noble Lord, Lord McIntosh, for having given a considered reply. I emphasise again that I do not seek to move a step towards regulation of the press. This is a milestone to indicate an area where not just the press but no one should stray. I believe that it is necessary to do that. I regard it as a matter of principle. I am sure that the many problems which the noble Lord, Lord McIntosh, foresaw if we accept the amendment could be sorted out by careful consideration and production of a further amendment at Third Reading if the Government wish to do so.

However, this is a matter of principle for me and I seek the opinion of the House.

4.5 p.m.

On Question, Whether the said amendment (No. 80) shall be agreed to?

Their Lordships divided: Contents, 55: Not-Contents, 82.

Division No. 1
Ackner, L. Hayhoe, L.
Ailesbury, M. Hereford, Bp.
Alexander of Tunis, E. Hooson, L.
Alton of Liverpool, L. Hylton, L.
Ampthill, L. Hylton-Foster, B.
Braybrooke, L. Lane, L.
Bridges, L. [Teller.] Leathers, V.
Brightman, L. Leigh, L.
Charteris of Amisfield, L. Macleod of Borve, B.
Chorley, L. Marlesford, L.
Craigavon, V. Milverton, L.
Dearing, L. Monckton of Brenchley, V
Dowding, L. Monson, L. [Teller.]
Ellenborough, L. Montagu of Beaulieu, L.
Exmouth, V. Moyne, L.
Gardner of Parkes, B. Nathan, L.
Haddington, E. Northbourne, L.
Halsbury, E. O'Cathain, B.
Palmer, L. Strathcarron, L.
Park of Monmouth, B. Strathcona and Mount Royal, L.
Perry of Southwark, B. Swansea, L.
Rees, L. Swinfen, L.
Tenby, V.
Renton, L. Walpole, L.
Roll of Ipsden, L. Walton of Detchant, L.
St. John of Bletso, L. Warnock, B.
Saltoun of Abernethy, Ly. Wharton, B.
Sandwich, E. Wilberforce, L.
Acton, L. Hunt of Kings Heath, L.
Allen of Abbeydale, L. Irvine of Lairg, L. [Lord Chancellor.]
Archer of Sandwell, L.
Barnett, L. Jay of Paddington, B.
Bassam of Brighton, L. Jenkins of Putney, L.
Blackstone, B. Judd, L.
Borrie, L. Kennedy of The Shaws, B.
Brooke of Alverthorpe, L. Kennet, L.
Bruce of Donington, L. Kilbracken, L.
Burlison, L. Lockwood, B.
Carmichael of Kelvingrove, L. Longford, E.
Carter, L. [Teller.] McCarthy, L.
Castle of Blackburn, B. McIntosh of Haringey, L. [Teller.]
Cledwyn of Penrhos, L.
Clinton-Davis, L. Mallalieu, B.
Cocks of Hartcliffe, L. Merlyn-Rees, L.
David, B. Milner of Leeds, L.
Davies of Oldham, L. Molloy, L.
Donoughue, L. Monkswell, L.
Dormand of Easington, L. Montague of Oxford, L.
Dubs, L. Nelson, E.
Eatwell, L. Peston, L.
Elis-Thomas, L. Plant of Highfield, L.
Evans of Parkside, L. Ponsonby of Shulbrede, L.
Falconer of Thoroton, L. Prys-Davies, L.
Farrington of Ribbleton, B. Ramsay of Cartvale, B.
Gallacher, L. Randall of St. Budeaux, L.
Gladwin of Clee, L. Rea, L.
Gould of Potternewton, B. Rendell of Babergh, B.
Graham of Edmonton, L. Richard, L. [Lord Privy Seal.]
Grenfell, L. Simon, V.
Hardie, L. Stallard, L.
Hardy of Wath, L. Strabolgi, L.
Haskel, L. Symons of Vernham Dean, B.
Hayman, B. Thomas of Macclesfield, L.
Henderson of Brompton, L. Turner of Camden, B.
Hilton of Eggardon, B. Watson of Invergowrie, L.
Hollis of Heigham, B. Wedderburn of Charlton, L.
Howie of Troon, L. Whitty, L.
Hoyle, L. Williams of Elvel, L.
Hughes, L. Williams of Mostyn, L.
Hughes of Woodside, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 27 [Abolition of rebuttable presumption that a child is doli incapax]:

4.14 p.m.

Lord Goodhart moved Amendment No. 81: Page 22, line 3, at end insert— ("() Where a child aged 10 or over is accused of an offence, it shall he a defence for him to show on the balance of probabilities that he did not know his action was seriously wrong.").

The noble Lord said: My Lords, in the absence of my noble friend Lord McNally, who is unwell, I rise to move this amendment.

On this occasion we return to the subject of doli incapax, or, as Clause 27 of the Bill slightly more comprehensively puts it, The rebuttable presumption of criminal law that a child aged 10 or over is incapable of committing an offence".

I accept, as do my noble friends on these Benches, that the present rule is, as it stands, unjustified. It should not be necessary for the prosecution to have to prove as part of its case that a 13 year-old child, who may by that time be a professional burglar, as some are, knows that breaking into someone else's house and stealing cash and jewellery is wrong. However, we seek not to abolish the rule, but to modify it.

Children develop a concept of right and wrong very early. You learn at a very young age that it is wrong to throw your porridge on the floor if you do not want to eat it. You learn that it is wrong to grab your little sister's favourite toy and make her cry. But what does not come until much later is the concept of criminality; namely, the difference between doing things which are naughty and for which you will be punished (it is to be hoped) by a parent, and doing things which are seriously wrong and liable to punishment by a court. I certainly do not believe that all children understand the concept of criminality by the age of 10.

By current international standards, 10 is a very low age for criminal responsibility. Most other European countries have an age of criminal responsibility of at least, at the lowest, 12; and of the significant European countries, ignoring one or two mini-states such as Malta, only the United Kingdom, the Netherlands and Switzerland have an age of responsibility of less than 12. I am of course aware that the age of responsibility in Scotland is eight, which is not something of which I approve. However, I also recognise that Scotland has the highly respected system of children's panels, which draws some of the sting from a very low age of criminal responsibility.

If we are to retain an age of criminal responsibility as low as 10, what is needed is an intermediate stage. We should not jump straight from no criminal responsibility at the age of nine to full responsibility at the age of 10. We need to protect 10 or 11 year-olds who do not understand that what they are doing is seriously wrong. We should do so by allowing the defence to raise and prove, on the balance of probabilities, that the child in question did not have the capacity to understand that what he or she was doing was seriously wrong.

In Committee, the noble Lord, Lord Williams of Mostyn, opposed this amendment because, as he said, we need to deal with intervention, rehabilitation and beginning to assist the child".—[Official Report, 12/2/98; col. 1324.]

But if the defence of lack of understanding succeeds, it does not, and should not, mean that the child walks out of the court and nothing is done about its behaviour. What it should mean is that the child should be dealt with by a care order or a supervision order made by a family proceedings court, and that that child should not be treated as a criminal. The noble Lord also said that the more warped the child's moral standards, the easier it would be to raise the defence of lack of capacity, quoting from the noble and learned Lord, Lord Ackner, who was himself quoting from an article written many years ago by Professor Glanville Williams.

However, I do not believe that that is the case. A child with warped moral standards is likely to come from a family which is itself in trouble with the law. Whatever its understanding of right and wrong, it is certain that a child with that background is likely to understand the concept of criminality earlier than most children. The child this amendment seeks to protect is not the child with warped moral standards; it is the slow child, the silly child, the child who tags along with older children on what he thinks is a prank but what is in fact something much more serious. It is for that reason that I believe this amendment would improve the Bill as regards the protection of children of 10 and 11 years old who will not be adequately protected if the existing law of doli incapax is removed and nothing put in its place. I beg to move.

Baroness Mallalieu

My Lords, I support the amendment moved by the noble Lord, Lord Goodhart, and hope that the Minister will not lightly dismiss the concerns of many who practise at the criminal bar about the abolition of this rule. I believe that most people accept that the application of the rule is unsatisfactory and has in the past led to youngsters who should have been prosecuted not being prosecuted. We all accept that reform is necessary, but the present rule provides a safeguard. I am concerned that if all we do is to abolish it we shall, in a classic manner, be throwing out the baby with the bath water.

The present rule works as a safeguard against the conviction of a child who genuinely does not know that what he or she has done is seriously wrong. It offends me—and, I suspect, other noble Lords—that someone in that position should be the subject of a criminal conviction in our courts, particularly given the age with which we are concerned of up to 13.

The present rule works as a safeguard in two ways. First, when the prosecuting authorities have to decide whether or not to proceed, someone has to look at the evidence and consider whether the child did or did not have the necessary knowledge and whether that could be proved by the Crown. If it is decided that there is evidence and the case goes ahead, there is a second stage at which the safeguard applies during the trial when the defence can raise the issue, call evidence and obtain a "not guilty" verdict if the Crown are unable to establish that the child did know. To abolish that rule without any replacement would seem to me to remove all safeguards. I should be grateful if the Minister will tell us what safeguards there will be if he does not accept the amendment.

The amendment leaves a means by which the defence, if they are able to put convincing evidence before the court, can ensure that such a conviction does not take place. Not all defendants, particularly those in the age bracket of 10 to 13, are streetwise, educated young criminals. A wide variety of people come before our courts. It is sometimes said—perhaps not seriously, but one has only to look at the list outside the Old Bailey to see how true it is—that a court list consists of a judge with an English name trying people with foreign names. It is not just people who are slow-witted or backward at that age; our courts are, unhappily, also full of people who have been in this country for a very limited time. For example, in the past year or so I am aware of a case where a child from Somalia, who had recently come here as a refugee, had known nothing but civil war and had received no formal education, was tried for rape. There are also cases of youngsters who have recently come from the backstreets of Kingston, Jamaica, who find themselves before our courts. Those children cannot be judged by the standards of a child who has been through our English education system and grown up in our society.

I hope the Minister will accept that the conviction of a child who genuinely does not know that his actions are wrong cannot be morally justified. I know that he is sympathetic on all matters concerned with juvenile offenders and that his aim would be to ensure that someone in this position received assistance. I hope that if this rule is to go, as is intended by this legislation, and nothing is to replace it, we can at the very least be assured that those in the Crown Prosecution Service who decide whether or not to bring these prosecutions will continue to look rigorously at every case involving a child of this age to see whether it is really in the interests of justice that the full procedure of the criminal law should apply.

Lord Campbell of Alloway

My Lords, I speak with deference and considerable respect, but on this occasion I do not believe that the noble Baroness, Lady Mallalieu, has got it quite right. The noble Baroness has vast experience in this sphere. In this day and age this presumption makes no sense when squared against the annals of the kinds of serious criminal conduct committed by those who are of the age where the presumption applies. The concern, as put by the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Goodhart, is understood: if the child did not know that what he was doing was seriously wrong, he ought not to stand trial. However, I am not sure that that is the right way of dealing with this issue. I shall be interested to hear what the noble Lord, Lord Williams of Mostyn, has to say about it.

The reason I am not sure is that most crimes involve a relevant element of intention which has to be proved by the Crown beyond all reasonable doubt. If for some reason—and some examples have been given—the child really did not know that what he was doing was seriously wrong, it is open to the court or the jury to conclude that he had not, beyond all reasonable doubt, that intention. Even if it is shown that the child had that intention, the circumstances, the fact that it is a child and all other factors will be taken into account in mitigation. Courts are very reluctant to deal harshly with children.

It seems to me that the clause as it stands is a sensible and brave contribution relevant to the needs of reducing crime committed by these very people, often in gangs and with severe ruthlessness. As presently advised, I shall oppose the amendment, but I shall be interested to hear the reply.

Lord Northbourne

My Lords, I too am inclined to oppose the amendment and to argue with the noble Baroness, Lady Mallalieu. If a child of 10 or 11 really does not know that a serious offence is wrong, it is important that that child should learn that it is wrong. To unconditionally discharge the child will not help him. It is much better that the courts should take the necessary action to ensure that the child is taken into care or given some other help so that he can learn that what he has done is wrong before he commits a more serious offence. For example, in the case of taking away and driving a car, the child should know that it is wrong before he does it again and kills someone.

Lord Judd

My Lords, like others, I need no convincing that my noble friend the Minister is on the side of enlightenment, compassion and concern in the administration of justice. He must therefore find this part of the Bill very difficult to defend.

This issue is a good illustration of the way in which law is often drafted by decent, responsible people who have had the benefit of a good education and a good family background and cannot conceive of the reality of the background from which some of the people who end up in court have come. As a constituency Member of the other place—which I was for 13 years—in the course of my casework I repeatedly came up against the most disturbing and horrific family situations in which it would have been quite amazing if a young person had reached the age of 10, 11, 12 or 13 with any clear sense of what was right and wrong. It is in that sense that the noble Lord, Lord Goodhart, is standing for decency in the law in saying that we must accept and face that reality and make sure that the position of young people coming from such a background is properly defended.

The other observation which I must make in this context—some of those who share my anxieties about this part of the Bill may not endorse my argument—is that there is a deeper issue which concerns me in regard to this part of the Bill. In the context of a rather materialistic society, I hope that we are not moving into an over-punitive approach towards the administration of justice. It seems to me that the biggest challenge—we will no doubt return to this argument on other elements of the Bill—in the administration of justice is always rehabilitation; that is, how we win the offender back to full constructive citizenship. That should be our primary concern in a civilised society.

What worries me is not what the intention was in the drafting of the Bill, but that the effect of this part of it plays to a social attitude which wants to pile all the blame onto the shoulders of the young child who is in court; that it fails to accept the collective social responsibility for the situation in which the child finds itself. The child may come from an environment of appalling schools, appalling housing; media which plays to sensationalism and violence and parents who had no chance to develop their sense of responsible parenthood in their education, upbringing and environment.

If one takes into account all those wider challenges of the reality of the age in which we are living, this part of the Bill is not right. I hope therefore that the Minister—for whom I have tremendous respect, not only politically, but personally—will find a way when responding to say that, even if he cannot accept Amendment No. 81 today, he will look at the case that is being made; take it away and talk to his colleagues to see how at a later stage of the Bill he can come back and meet the genuine and widespread anxieties of this House.

4.30 p.m.

Earl Russell

My Lords, F.W. Maitland, who is perhaps still our greatest ever legal historian, once wrote an article under the title, The Early History of Malice Aforethought. But Amendment No. 81 is concerned rather with the pre-history of malice aforethought. Malice aforethought—mens rea—as far back as criminal records go, has been just about the central constituent idea of criminal responsibility. But that guilty intent is made up of several elements. It is made up of rote learning, of knowledge and imagination. One cannot necessarily assume that all parts of those constituent elements are necessarily acquired at the same moment, which is why the phrase, the "pre-history" of malice aforethought is relevant.

We can take, for example, children who pull the wings off butterflies; I have known such children among my school contemporaries. They know perfectly well that what they do is wrong in the sense that they know that mummy will be cross; but they do not have any conception at all of the sort of pain and horror that they may be creating.

The noble Lord, Lord Northbourne, said rightly that a child in that situation must be helped to learn. That is the centre of the point. But in moving the amendment my noble friend Lord Goodhart said that there is nothing about the carrying of this amendment which would in any way impede that process. Indeed, it may help it, for the full panoply of the criminal law is not necessarily the best way to help a child to learn.

I will take one single case, though it is not in any sense a criminal case, which perhaps pinpoints that mixture of fantasy and reality which these intermediate stages of childhood may involve. I am told—though I do not answer for the truth of it—that the youngest child ever to give birth was a Peruvian girl aged nine. She was offered the baby to hold and pushed it away and asked for her doll. It is that mixture of reality and fantasy which I should like to see protected by this amendment.

Lord Ackner

My Lords, one should bear in mind what a narrow subject we are dealing with. We are dealing with the question of the abolition of an out-of-date presumption and the sole question is: should the presumption be tempered so that part of it remains?

What is being overlooked by some is that we are not concerned with retributive punishment; that will not be applied in the cases with which we are dealing because the Children and Young Persons Act 1933, Section 44(1), provides that, Every court in dealing with a child or young person … shall have regard to the welfare of the child or young person". That is why in Committee I submitted that there was wisdom in what Professor Glanville Williams said in 1954, that the presumption was out of date: It saves the child not from prison, transportation or the gallows, but from the probation officer, the foster-parent or the approved school. The paradoxical result is that, the more warped the child's moral standards, the safer he is from the correctional treatment of the criminal law".

Lord Thomas of Gresford

My Lords, on re-reading what was said at Committee stage and listening to your Lordships today, it occurs to me that there is a general consensus on all sides of the House. Regardless of whether those who have spoken are for or against the amendment, everybody accepts that where a child of the ages about which we are talking has not developed a moral sense and does not appreciate that what he or she is doing is seriously wrong, then the proper way of dealing with the child is rehabilitation, redemption and so forth.

The noble and learned Lord, Lord Ackner, said that we are dealing with an out-of-date presumption. We are actually dealing with an out-of-date system for dealing with offenders of this age. If one goes to Scotland—reference has been made to the age of responsibility in Scotland being as low as eight—the Youth Panel system deals with young children in an entirely different way. It just so happens that in the Labour Government of 1966 to 1970 there was a division about the way in which young children should be treated. In Scotland the Youth Panel was implemented; in England and Wales, due to the intervention of the Magistrates' Association and the Justices' Clerks' Society which at that time made strong representations, the old system of a judicial process of proving a charge and of punishment was maintained for ourselves.

In Scotland, if a child is brought before the Youth Panel, that child will be dealt with by the justices, the magistrates and the members of the panel altogether. The child will be present, as will the parents, while the evidence is gone into; while the mitigating circumstances are discussed; while the reports are read. But, more particularly, the child is there while the members of the Youth Panel discuss among themselves and with the parents, in the presence of the child, what is the best way of bringing about redemption and rehabilitation. What we are urging from these Benches in later amendments is that we should seriously consider adopting that kind of regime in England and Wales. However, until we get there, and while we are still using the system we have at the present time, which I suggest is an out-of-date system, the amendment put forward by my noble friend has a great deal of validity.

It offends us, when we are considering the proving of a criminal offence and the punishment for that offence—which is the way in which things are framed at the moment—for a child to be castigated as a criminal at the age of 10 when the premise of my noble friend's amendment is that the child does not fully appreciate or understand what it has done. Until we change the system in England and Wales, the amendment proposed by my noble friend has a great deal of validity, and I am very happy to support it.

Lord Williams of Mostyn

My Lords, there does not seem to be any disagreement that the ancient presumption is in need of reform. Therefore, the question seems to be: should it be reversed or should it be abolished? When we were deciding how best to proceed we considered whether reversal or abolition was the better course. We put it out to consultation. I respectfully remind your Lordships of what I said earlier. Of those who responded to the consultative paper Tackling Youth Crime, 111 out of the 180 who expressed a view said that abolition was appropriate.

I have listened with care to the argument. Perhaps I may respond in particular to one or two distinct aspects. The noble and learned Lord, Lord Ackner, with great respect, is quite right. We are not talking about a retributive system. I echo, again respectfully, what the noble Lord, Lord Northbourne, said. What one is looking for here is intervention which ought to be able to offer not retribution but rehabilitation, help and support. I agree entirely with the noble Lord, Lord Judd, that we must not look to an over-punitive regime. What we have done in dealing with children over the past years is to leave intervention and the opportunity for informed, structured rehabilitation far too long. One needs to make a careful distinction between, as the noble Lord, Lord Campbell of Alloway, said, intervention with a criminal prosecution and what one does if guilt is proved.

No one wants to be over-punitive of small children but one has to bear in mind that some small children do extraordinary harm. We have to bear in mind the legitimate and reasonable concerns of victims. Quite often it is notoriously, though sadly, true that the victims of young criminals are vulnerable people such as old people living alone. They are also entitled to a reasonable regard for their rights and freedoms just as one has to have a proper and tender regard for young children. We believe that we have the balance right here.

I go a little further, if I may, and repeat and adopt what the noble Lord, Lord Northbourne, said. What one wants here is early intervention; not early savage punishment but early assistance. It does a child no favours to let it drift on without knowing, particularly in a modern sophisticated society, that if it commits criminal acts there will be a sanction. It may well he a sanction by way of intervention and rehabilitation, not punishment, but that a sanction is required upon these occasions we believe is beyond doubt.

The noble Baroness, Lady Mallalieu, for whose opinions I always have great respect and regard, put the illustration of a young man from Somalia who had committed rape. There was therefore a victim of a gross offence. I have to say that in respect of that illustration I was not myself satisfied at all about the validity of her point. She asked specific questions. Your Lordships will have seen that sitting next to me is the Solicitor-General, with his responsibility for the Crown Prosecution Service. I am happy to give the indication which the noble Baroness wanted.

Before a child appears in court accused of a criminal offence there will be several stages. At each stage a decision will have to be made about whether a criminal charge is appropriate. The first is the police, who will decide whether to charge or caution the child. If they decide to charge, the case will go to the Crown Prosecution Service, which will decide whether to prosecute. In making that decision—I take the noble Baroness's phrase and adopt it—of course the Crown Prosecution Service will continue to look rigorously at all the circumstances. It will, of course, decide whether there is a reasonable prospect of conviction. It will also continue to bear in mind whether or not it is in the public interest for a prosecution to be brought. The public interest, I respectfully repeat, does not limit itself only to the public interest in the welfare of a prospective defendant child. In making those decisions the Crown Prosecution Service will consider the welfare of the child because the courts are required to do so under Section 44 of the Children and Young Persons Act 1933. Those safeguards will continue, but we believe that is the proper way forward.

I also ought to tell your Lordships, as a matter of courtesy and, I hope, convenience, that the Government intend to introduce at Third Reading an amendment to the existing provisions relating to inferences which may be drawn from the refusal of a defendant to give evidence or answer questions in court. The provision applies at the moment only to those aged 14 or older. Our proposed amendment would extend the provision to all those who are over the age of criminal responsibility. That deviates from the point here but I thought it appropriate that I should mention it so that those of your Lordships who may have an interest in that area will have ample opportunity and notice.

I have listened to the submissions. I realise that there is not unanimity and that those who have anxiously held views about child welfare may come to different conclusions, as perhaps has the noble Lord, Lord Judd, on the one hand, and the noble Lord, Lord Northbourne, on the other. I hope your Lordships will think I have given due regard to the propositions that have been put, but I regret that we cannot accept the amendment. I further say to my noble friend Lord Judd that I cannot say that I will reconsider it with an open mind because we have come to our conclusion.

Lord Goodhart

My Lords, I am most grateful to all noble Lords who have spoken on this amendment and I am particularly grateful for the contributions from the other side of the House of the noble Baroness, Lady Mallalieu, and the noble Lord, Lord Judd. I am grateful that the Minister recognises that help and not retribution is the aim when one is dealing with young children who have committed acts that in the case of an adult would clearly be criminal. The case is simply: what is the right place for that help; should it be the criminal court or the family proceedings court?

I certainly believe that for a child who does not understand what he has done is seriously wrong, the appropriate place for that help is the family proceedings court.

I have taken note of what the noble Lord, Lord Williams, said at the end of his speech about the proposal to allow inferences to be drawn from the silence of children under the age of 14. On this occasion I shall say only that that causes me very considerable concern. But that is a matter for another time. I regard this amendment as a matter of importance and of principle and I therefore think it necessary to take the opinion of the House.

4.49 p.m.

On Question, Whether the said amendment (No. 81) shall be agreed to?

Their Lordships divided: Contents, 32; Not-Contents, 105.

Division No. 2
Addington, L. McNair, L.
Avebury, L. Maddock, B.
Beaumont of Whitley, L. Mar and Kellie, E.
Calverley, L. Meston, L.
Carlisle, E. Methuen, L.
Dholakia, L. Newby, L.
Ezra, L. Nicholson of Winterbourne, B.
Goodhart, L. [Teller.] Rodgers of Quarry Bank, L.
Hamwee, B. Roll of Ipsden, L.
Hooson, L. Russell, E.
Hutchinson of Lullington, L. Sainsbury, L.
Hylton, L. Thomas of Gresford, L. [Teller.]
Kennedy of The Shaws, B. Thomas of Walliswood, B.
Kennet, L. Tope, L.
Linklater of Butterstone, B. Wallace of Saltaire, L.
Ludford, B. Wigoder, L.
Ackner, L. Dean of Thornton-le-Fylde, B.
Acton, L. Donoughue, L.
Alexander of Tunis, E. Dormand of Easington, L.
Alton of Liverpool, L. Dubs, L.
Archer of Sandwell, L. Elis-Thomas, L.
Barnett, L. Elton, L.
Bassam of Brighton, L. Evans of Parkside, L.
Blackstone, B. Falconer of Thoroton, L.
Borrie, L. Farrington of Ribbleton, B.
Brightman, L. Gallacher, L.
Brooke of Alverthorpe, L. Gilbert, L.
Bruce of Donington, L. Gould of Potternewton, B.
Burlison, L. Graham of Edmonton, L.
Burnham, L. Halsbury, E.
Callaghan of Cardiff, L. Hardie, L.
Campbell of Alloway, L. Hardy of Wath, L.
Carmichael of Kelvingrove, L. Haskel, L.
Carter, L. [Teller.] Hayman, B.
Castle of Blackburn, B. Henderson of Brompton, L.
Charteris of Amisfield, L. Hollis of Heigham, B.
Chorley, L. Howie of Troon, L.
Clanwilliam, E. Hoyle, L.
Cledwyn of Penrhos, L. Hughes, L.
Clinton-Davis, L. Hughes of Woodside, L.
Cocks of Hartcliffe, L. Hunt of Tanworth, L.
Coleridge, L. Hylton-Foster, B.
Davidson, V. Irvine of Lairg, L. [Lord Chancellor.]
Davies of Coity, L.
Davies of Oldham, L. Jay of Paddington, B.
Jenkins of Putney, L. Prys-Davies, L.
Kilbracken, L. Ramsay of Cartvale, B.
Lane of Horsell, L. Randall of St. Budeaux, L.
Lockwood, B. Rendell of Babergh, B.
Lovell-Davis, L. Renton, L.
McIntosh of Haringey, L. [Teller.] Richard, L. [Lord Privy Seal]
St. John of Fawsley, L.
Masham of Ilton, B. Shaughnessy, L.
Merlyn-Rees, L. Simon, V.
Milner of Leeds, L. Skelmersdale, L.
Molloy, L. Stallard, L.
Monkswell, L. Strabolgi, L.
Montague of Oxford, L Swinfen, L.
Nelson, E. Symons of Vernham Dean, B.
Tenby, V.
Noel-Buxton, L. Thomas of Macclesfield, L.
Nome, L. Turner of Camden, B.
Northbourne, L. Warnock, B.
O'Cathain, B. Watson of Invergowrie, L.
Oppenheim-Barnes, B. Wedderburn of Charlton, L.
Palmer, L. Wharton, B.
Patten, L. Whitty, L.
Peston, L. Williams of Elvel, L.
Plant of Highfield, L. Williams of Mostyn, L.
Ponsonby of Shulbrede, L. Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.58 p.m.

Lord Archer of Sandwell moved Amendment No. 82: After Clause 27, insert the following new clause—

("Abolition of death penalty


.—(1) In section 1 of the Treason Act 1814 (form of sentence in case of high treason), for the words "such person shall he hanged by the neck until such person he dead", there shall be substituted the words "such person shall he liable to imprisonment for life". (2) In section I of the Treason Act (Ireland) 1703, the words "pains of death, and" shall cease to have effect. (3) The Treason Act 1790 and the Treason Act 1795 are hereby repealed. (4) In section 2 of the Piracy Act 1837 (punishment of piracy when murder is attempted), for the words "and being convicted thereof shall suffer death" there shall he substituted the words "and being convicted thereof shall be liable to imprisonment for life". (5) The Sentence of Death (Expectant Mothers) Act 1931 is hereby repealed.").

The noble and learned Lord said: My Lords, some of your Lordships may recollect that an amendment in terms similar to this one was debated in Committee. I am deeply grateful to those of your Lordships who have encouraged and supported me both inside and outside the Chamber. Your Lordships may be relieved to learn that I do not propose to repeat today all that I said in Committee. But lest some few of your Lordships were not present on that occasion, or have not had an opportunity of reading the report, may I indicate briefly what the amendment seeks and does not seek to do.

What it seeks to do is to remove finally from the statute book the last remnants of capital punishment in time of peace, that is, for certain offences of piracy and treason. I hope that I have now rectified the omissions in the draft which I presented in Committee. I am deeply grateful to all those who have assisted with the research, particularly to Amnesty International and to the officials of the Public Bill Office. We have trawled through the statutes in force and I think we have reached all the parts which my former researches did not reach. Even if there is some provision lurking unsuspected and undiscovered, I hope that your Lordships will not think that that precludes the House from taking a clear decision of principle today.

I turn now to what the amendment does not seek to do. First, it does not seek to revolutionise our customary way of life. The last execution for piracy was in 1830, and capital punishment for treason was last executed in 1947. So we have subdued piracy and frustrated treason for 50 years without resorting to the gallows. As some of your Lordships pointed out in Committee, capital punishment for arson in a royal dockyard was abolished unnoticed and unlamented in 1971 and was not followed by a spate of incendiarism in naval dockyards. The last execution in this country was for murder, and that provision was abolished in 1965, so I do not claim that the amendment will prevent the tumbrels from rolling.

My reasons for the proposal are twofold. First, I believe that it is a criterion by which history will judge our civilisation. As we perceive the ending of the blood feud and of whipping through the streets, so I believe will future generations perceive the ending of capital punishment in this country and its replacement by more civilised and more effective methods of law enforcement. Indeed, the Treason Act 1814, one of the provisions which it is proposed to repeal, was itself a civilising measure: it substituted hanging for disembowelling.

My second reason for moving the amendment is that I believe that it will encourage those countries which still retain capital punishment to think again and it will add credibility to our own Government's endeavours to bring that about. Knowing that the Government have reservations about ratifying the sixth protocol to the European Convention on Human Rights and the protocol to the International Convenant on Civil and Political Rights, I propose to leave that debate for another occasion. It is no part of this amendment and I do not propose to pursue it today although I give no undertakings as to my future conduct. My dispute with the Government on that issue is not because they are less than enthusiastic to see the death penalty abolished everywhere. They have played a leading role and strongly supported the final declaration of the summit of the Council of Europe last year which called for its universal abolition.

The amendment does not seek to amend the substantive law. Certainly, the law of treason is in need of revision; much of it still rests on the Treason Act 1351. In consequence, it would be treason to slay my noble and learned friend the Lord Chancellor but only if he is in his place executing his office. Anyone who imagines the need to slay him need only wait until he is going to the theatre when they need have no concern for the law of treason. Happily, as we all know, my noble and learned friend's safety does not rest on the Treason Act 1351. The Law Commission published a paper on the subject in 1977 but owing to what I believe were more the vicissitudes of parliamentary time than the merits of the argument the matter was never pursued.

None of that is relevant to the amendment. I mention it only because when I introduced a similar amendment in another place on 17th December 1990, I was met with the argument that the Law Commission was reviewing the whole law of treason and that it would be better to await the outcome. When next morning I telephoned the chairman of the Law Commission, he said that it was the first he had heard of it. Lest it be suggested that realistic amendment of the penalty should await a review of the substantive law, I merely observe that if it were to be suggested that because the law of treason is a complete muddle anyone convicted under it should for that reason be hanged, I would find the argument difficult to follow.

When the proposal in the amendment is made there are sometimes those who say that we should not act precipitately and that the matter requires more thought. Presumably, that is a way of saying that although no one can think of an argument against it, perhaps if we leave it long enough someone may come up with one. We have been reflecting on this since 1990.

The amendment does not seek to abolish the death penalty for certain offences against military law in time of war. That is not because I believe that our national safety depends upon shooting soldiers for cowardice, but because I recognise that the arguments are different. In Committee, the noble Lord, Lord Goodhart, suggested that it might be arguable that we should exempt from the amendment treason (even by civilians) in time of war. As the noble Lord would expect, I naturally reflected carefully on that. I finally decided against it because I believe that although it is arguable that in wartime troops in battle should be more afraid of their officers than they are of the enemy, I am not sure that civilians are best motivated in that way. I hope that the noble Lord will not press me on that.

Perhaps I may be permitted one final explanation. It may be wondered why I propose to substitute for the death penalty a mandatory life sentence since I have never concealed my support for those among your Lordships who argue for the abolition of that form of sentence. I do so only because that was the alternative to the death penalty that was adopted in the case of murder and it would avoid the charge of inconsistency. I simply say that I reserve that subject for a future debate.

This is one of those suggestions which are scarcely still controversial but for which there is never an appropriate moment to lay them to rest. I submit that there will be no better time than now. I beg to move.

Lord Windlesham

My Lords, in Committee, the noble and learned Lord, Lord Archer, and the noble Lord, Lord Thomas of Gresford, gave full and at times entertaining accounts of the historical origins of the statutes on piracy and treason. They had no difficulty in persuading the Committee that the death penalty provisions were wholly obsolete and should he repealed. We heard a résumé of the argument from the noble and learned Lord just now.

My only reason for intervening today, having heard the previous debate but not spoken in it, is that I sensed in Committee an assumption, particularly noticeable in the latter part of the debate, that with the spread internationally of more civilised standards, if one can use that expression, the death penalty was in decline. As a convinced abolitionist, I wish that it were so, but, unhappily, much of the evidence points in the opposite direction.

The statistics compiled annually by Amnesty International, the most reliable source, show that in recent years, although there has been a welcome reduction in the total number of countries in which people are sentenced to death, the use made of capital punishment is on the increase and in some instances, such as the years 1995–96, sharply so. In 1995 at least 4,165 prisoners were sentenced to death, and 2,931 were executed. In 1996 7,107 prisoners were sentenced to death, and 5,139 were executed. It is true that some of the increases arose in countries with which we would not care to compare ourselves, but others are closer to home. In the United States of America, after a 10-year moratorium which ended in 1976, a substantial majority of states have reinstated capital punishment in state law, even states like New York and New Jersey which are regarded by some as traditional homes of civil liberties. In federal law there is now a long list of offences, some 40 or 50, punishable by the death penalty. In a number of cases the liability applies even where no victim has died as a result of the criminal act.

Because of the long drawn-out procedures for appeal against conviction and post-conviction review prisoners who are sentenced to death can spend anything up to 10 years on death row, and in a few cases even longer. As a result, at the moment there are over 3,000 prisoners on death row in the United States. In the state of California alone the number is between 400 and 500. There is an incoming tide from America.

Why do I raise that this afternoon in relation to this particular amendment which is so much narrower in scope? I raise it because in recent years so many ideas about penal policy—in my opinion, not all of them beneficent—have crossed the Atlantic in an easterly direction. For an example we need look no further than the introduction last year of mandatory sentences of imprisonment in the Crime (Sentences) Act.

The motivation for the use of the death penalty in the United States is now primarily retributive. It is the anger, fear and popular resentment caused by the extent of violent crime that has led to the re-emergence of what is fundamentally vengeance in penal policy. This is an ominous development of profound significance. Protective walls need to be built up in this country and elsewhere in Europe to make sure that there is no erosion of the principle that capital punishment has no place in the laws of a truly civilised country.

I return to the amendment. I hope that noble Lords will forgive me for going somewhat wider than the amendment which would effect a very modest change.

We would be doing away with no more than historical relics of no practical significance. That would enable us to concentrate on strengthening what matters: our contemporary system of criminal justice, without resorting to the inhuman practices of the past.

5.15 p.m.

Lord Randall of St. Budeaux

My Lords, I make a very brief contribution to the debate on Amendment No. 82. I register my support for it rather than enter into the intricacies of the argument. My noble and learned friend Lord Archer has moved the amendment in such an eloquent fashion that I cannot match it. Therefore, I have decided to say very little.

I believe that the case is very simple. The principle is whether the state should be empowered to take the life of an individual and to do so irrespective of the seriousness of the crime. I do not believe that the state should ever have that power, and that is why I want the residual powers that exist in English law to be repealed. Existing science demonstrates that the death penalty is not the deterrent that has been used in political arguments for so many years. In the other place on numerous occasions attempts have been made to reintroduce capital punishment and those attempts have been defeated. I believe that that underlines the principle that capital punishment does not work in practice. The principle is itself so significant that a civilised country should not have recourse to such behaviour. The role of the state is to ensure that a convicted criminal is not in a position to harm individuals. I believe that there is here a "harm" test. Therefore, it is the responsibility of the state to take the appropriate action, which means imprisonment. Imprisonment in that way works. One can thereby ensure that the public is not harmed in any way.

My noble and learned friend Lord Archer went into the detail. It is not appropriate for me to go into the new clause and the way in which it deals with such matters as piracy and treason. The present law is utterly irrelevant. The failure of the courts to invoke it demonstrates that legislation introduced in the nineteenth century is not relevant to modern British society.

Before I sit down I should like to make one other point. I do not speak as a Catholic or as someone who has supported the anti-abortion campaign. This amendment would repeal The Sentence of Death (Expectant Mothers) Act 1931. I am pleased that it does so because I am repelled by the idea that a baby in the womb, which may be well developed, can be put to death by the state against the will of the mother for a crime committed by her. I find that quite unacceptable. I hope that this afternoon there is no division on this amendment and that it will be carried.

Lord Campbell of Alloway

My Lords, I am about to introduce a somewhat discordant note. I find difficulty with this amendment. Perhaps noble Lords will allow me briefly to explain the difficulty. I have no problem whatever about the repeal of the expectant mothers Act under subsection (5). This is a Bill to reform our domestic criminal law and it is wholly appropriate that this particular enactment should be repealed.

My noble friend Lord Windlesham has done the House a signal service by deploying the international perspective of this affair which goes beyond the ordinary confines of a domestic criminal reform Bill. It was a most useful and objective exposition, and I say so with respect to my noble friend.

I have problems with subsection (4). Piracy, in public international law, is an offence. It is not just a matter of domestic law. The subsection provides: punishment of piracy when murder is attempted … and being convicted thereof shall suffer death". My Lords, why not? That is the form generally in international affairs. What is wrong with it? Noble Lords will say no doubt, "This is wrong with that proposition; that is wrong with the proposition. What you are saying about international law is all nonsense. It is not that at all". So be it, but is this the time, is this the place, to entertain a discussion of that order? I respectfully suggest that it is not, and that this is not the Bill in which it should be dealt with.

Lord Archer of Sandwell

My Lords, perhaps the noble Lord will forgive me—I am most grateful to him. I trust that he appreciates that there is no intention in this amendment to change international law. This is to change our domestic law about what happens to someone who falls within the jurisdiction of the English and Scottish courts.

Lord Campbell of Alloway

My Lords, I am most grateful to the noble and learned Lord. I fully understand what I am talking about; but I am grateful to him nonetheless. I did not intend so to imply. I just want to deal with treason. I do not know, but I think that the last person who was hanged in the Tower was a stool pigeon at Colditz. That was for treason. I am not going to mention his name. What he did was treason. Those of us who were there were delighted to hear the result.

What happens in war? What happens in a prison camp? What is treason? How should it be dealt with? Is that a matter that we should start to discuss here? There are many ways in which this can be dealt with, but there is the international concept of treason. How is treason dealt with generally throughout the world? Usually by the death penalty. To me the death penalty is abhorrent. I spent a lot of useless time in your Lordships' House seeking to oppose the mandatory sentence for murder which was in exchange for the death penalty for murder. I oppose generally in our domestic law any form of re-imposition of the death penalty for murder, but I sincerely suggest that this amendment is not the way to deal with treason or piracy.

Lord Thomas of Gresford

My Lords, it always grieves me to disagree with the noble Lord, Lord Campbell of Alloway, and I am grieving rather a lot, I am afraid. He said that this is the form in international affairs. That is something that strikes me deeply. One may be conscious, as I am, of the executions that take place publicly in China, where the family is charged for the price of the bullet. Those executions are carried out for offences which do not necessarily involve murder. They may involve all sorts of different types of commercial offences. When that is the standard of international affairs that is put before us, I cannot accept it.

Just before Christmas I received a letter from someone whose address was "c/o Death Row" in a prison in Jamaica. I am happy to say that I have received a subsequent letter with the address, "c/o Local Remand Centre", because the appeal was successful. That brings it home that when we are looking at the international dimension, as the noble Lord, Lord Windlesham, said, far too many executions are carried out. Human life is taken on the flimsiest of evidence.

I come to our domestic legislation. Surely we must all have at the forefront of our minds the principle of respect for human life. We must bear in mind at all times that today, with the advances that we have had in scientific knowledge, it is not possible to be as confident as people appeared to be in the past of the guilt of a particular defendant. People who have been executed within our own jurisdiction in the past, may very well have been wrongly executed.

If that is the principle, what is the practicality? The practicality is that we are dealing with historic offences, historic punishments, which, as the noble Lord said, have no relevance to the circumstances of today. If therefore these provisions have no practicality, then the principle has to remain. I do not know what the Minister's attitude on this amendment will be, but I hope that we do not have to face a whipped vote on a matter of this sort in relation to this amendment.

Lord Ponsonby of Shulbrede

My Lords, I wish to remind your Lordships that we are members of the Council of Europe. As members of the Council of Europe, we signed Resolution 10/97 which calls upon all parliaments in the world, which have not yet done so, to abolish the death penalty for all crimes before the end of this Millennium. That resolution was passed in 1996.

The noble Lords, Lord Thomas and Lord Windlesham, spoke forcefully about the increase in capital punishment in America. The Council of Europe now has 40 member countries. To be a member of the Council of Europe one has to abolish the death penalty. That is a force for good. Every noble Lord who has spoken has referred to the irrelevance of these provisions for the death penalty.

During the last plenary session of the Council of Europe, which I attended, that had some relevance in an obscure way. A resolution was moved by a British Member of Parliament which called for the expulsion of the Ukraine from the Council of Europe because it was continuing to execute people. I was not alone in being ribbed by other members of the Council of Europe about the vestiges of the death penalty that we still have on our statute book. It undermined the argument that we were deploying to have the Ukraine expelled from the Council of Europe. I support the amendment moved by my noble and learned friend. I shall support it if he chooses to press it to a Division.

Lord Milverton

My Lords, I have been thinking about the death penalty for many years. I have been going back and forth over it. I have finally come to the conclusion that it is wrong. Let us ensure that when a person is convicted of murder, vile or not so vile, horrible or not so horrible—most murder is vile and horrible, no matter how it is done, by a man or woman—he realises the wrongness of his deed by knowing that he will be in prison not just for a little twinkle time but for a reasonably long time. We must ensure that we have a Prison Service which can provide constructive and positive creative activity. One cannot force that upon a person, but we must ensure that it exists so that he will be unable to say, "While I was in prison I had nothing to do".

I know that it is horrible for someone to have to impose the death penalty. I recall that my father often had to do so during his different governorships. He was known to be a strong man, but there was a soft side to him and it was shown at such times. The family knew that when my father had to carry out the ghastly act of signing a death warrant it hurt him. He hated having to do it, but it was the law of the land. I know that deep down he wished he need not.

Let us ensure that those who commit such vile crimes do not believe that they can afterwards say, "It's all right, society does not really bother about it. People are just sorry for us and a feeble excuse will be made about why we did it". We must provide such people with the opportunity for creative activity while in prison so that they have no chance of saying, "We were not helped to return to normal, or as normal as anybody can be". I am pleased that I have at last reached that decision.

5.30 p.m.

Earl Russell

My Lords, people at meetings sometimes ask unexpected questions. I remember when I was an undergraduate the late Hugh Dalton, addressing a meeting, being asked what was the best degree for politics. He replied, "A second, because the first-class mind is too conscious of the possibility of error". I make no comment on what is the best degree for politics, but I should like my judicial system to be run, as I believe it is, by first-class minds. The possibility of error is the centre of the whole argument against the death penalty. I will not run through the possibility of error in cases of murder—it is not relevant to the amendment—but in cases of treason, as the noble and learned Lord. Lord Archer, pointed out, it is redoubled because the law is such a mess.

The noble and learned Lord made only one comment with which I disagree. Do not denigrate the 1352 statute—or the 1351 statute, as it is in lawyers' dating. Every attempt to improve upon it has made confusion worse confounded. The trouble with treason is that it is a charge used to say, "I am very angry". People are often angry about issues of doubtful value. Therefore, the death penalty for treason is more likely to lead to error even than the death penalty for murder. The noble Lord, Lord Campbell of Alloway, asked why it should be considered in this House. I say that because of all the places in which it has been debated over the centuries more sense has been spoken about it in this House than in almost all the rest put together.

I have one other point which is of particular relevance to the Opposition Front Bench. I have heard Members of it say many times in this Chamber that murder is literally the most heinous crime. Whether one accepts that argument or not, if one believes that, then it makes only sense that no crime should have a more severe punishment. If one believes that, there is some incongruity about punishing either treason or piracy more severely than murder.

Finally, one must consider the effect of any punishment on those who inflict it as well as on those upon whom it is inflicted. When I was an undergraduate, the piece of information which finally converted me to supporting abolition of the death penalty came from the late Gerald Gardiner. I learnt that the number of people who applied for the post of public hangman was 500 a week. That is really conclusive.

Lord Judd

My Lords, I join those noble Lords who have congratulated my noble and learned friend Lord Archer on the steadfast lead he has given on this issue. I wish to put forward one argument in addition to those already convincingly deployed. It seems to me that if we base our position in respect of capital punishment on principle, principle must be absolute and not relative. Therefore, the more testing the circumstances in which we are considering a punishment, the more important it is to stand by the principle. In some ways, the more extreme the provocation, the greater the danger, the more important it is to stand firm. The moment one shows that one's principle can be qualified one throws into a position of jeopardy the application of the principle across the board.

Reference has been made—and it is important—to the fact that the number of executions in the world is increasing and that the tide of public opinion in the international community is not convincingly going in our direction. In such a situation it is not impossible that arguments could begin to be deployed that if the death penalty is retained in certain circumstances it is not illogical in terms of principle to apply it in other directions, too. So far as I am concerned, that is the most clinching argument in support of what is put forward by my noble and learned friend Lord Archer.

Lord Renton

My Lords, I hope that I may be forgiven for intervening in this important debate having missed the first 14 minutes of it. I invite your Lordships to consider what the effect of the amendment could be in time of war. We would have our own men and women fighting against the enemy and sacrificing their lives. At home, one of our own citizens might act as a traitor, going so far as to kill the sovereign, or place a bomb under 10 Downing Street. That would amount to an act favourable to the enemy—an act of treason. If the amendment were carried, while people were sacrificing their lives to defend their country, such a man clearly being guilty of treason would simply be imprisoned. That is not right.

Lord Kennet

My Lords, before the noble Lord sits down, can he tell the House why such an act would favour the enemy? Would it not make our people even more angry with the enemy?

Lord Renton

My Lords, if I may say so, that is a ridiculous proposition.

The Earl of Onslow

My Lords. I wish to reply to my noble friend Lord Renton. I use the phrase "noble friend" not only in its political sense but in its most personal sense. Bombs have been directed at 10 Downing Street and there was an attempt in Brighton to blow up Her Majesty's Government. We deemed it extremely stupid to charge those rebels—and that is exactly what they were—with treason because we knew that, if we charged them with treason, they would be open to the death penalty. Therefore, we took a political decision—and in my view, a wise political decision—to charge them only with conspiracy to cause explosions.

I believe that we are too grown up and too civilised a state to use the death penalty any more. I use one further analogy. Until 1948, Members of your Lordships' House who were charged with a felony were charged in front of the whole of your Lordships' House. That was removed by a Conservative amendment to the 1948 Criminal Justice Act, with the exception of treason. One commits treason if one has carnal knowledge of the sovereign, if female, or the wife of the heir to the throne. It seems to me to be terribly stupid to have a system whereby, if Major Hewitt had been a Member of your Lordships' House, he could have been charged with treason, of which he was undoubtedly guilty, dragged in front of your Lordships' House and then hanged. I admit that I am reducing that to the realms of the ridiculous but we should not have on our statute books the right to hang people for a ridiculous offence. I hope that this amendment will he accepted.

Lord Renton

My Lords, surely the point which my noble friend has raised would be dealt with better by redefining treason and confining it to matters which seriously threaten the security of our country.

Lord Annan

My Lords, redefining treason is well known over the centuries. The noble Earl, Lord Russell, said that this House had debated the issue of capital punishment better than any other institution. It is certainly true that over the centuries, since 1351, more Members of your Lordships' House than of any other institution have been executed. That is because the nature of treason was redefined time and again during the Tudor and Stuart periods.

Lord Davies of Coity

My Lords, I too wish to add my voice and extend my congratulations to my noble and learned friend Lord Archer on introducing this amendment. If he pushes it to a vote, I shall certainly support him.

I recall that I first became an abolitionist when I was a teenager. It was not popular to be so then because capital punishment was being practised in this country. But this debate this evening is not about whether or not this country has capital punishment. That debate has taken place; a decision has already been taken; and no longer do we practise capital punishment for murder. It is a question of establishing consistency in terms of capital punishment for piracy and treason.

It is totally inconsistent. I have always believed that, if we condemn people for committing murder, society can take no pride in committing the same offence in the form of what I have always considered to be state murder. I support this amendment and hope that the House will accept it.

Lord Lester of Herne Hill

My Lords, the merits of the amendment have been debated extensively and the overwhelming consensus of those who have spoken so far is that plainly there is an anomaly in our legal system. We are dealing with ancient, outmoded, archaic statute law. The question we need to consider now is whether we should promote a dialogue with another place to see whether both Houses are agreed that the time has come to remove those anomalies from our statute book.

It seems to me that it is peculiarly appropriate for this House to initiate that dialogue. We live in an age of statute law. some would say too much statute law. Some would say that we need a stronger common law for the age of statutes. But the problem for a legislature in an age of statutes is how on earth one gets rid of antiquated, archaic, dead laws which lie on the statute book and continue to disfigure it. It seems to me to be peculiarly within the province of the upper House, this House, with its expertise and Membership, to initiate a dialogue with the democratically elected other place so that if it is felt that the majorities that were formed in 1703, 1795, 1814 and 1837 no longer represent the majorities that would be formed in Parliament today, the other place can agree with this House to remove that disfiguring legislation from the statute book.

I should be surprised if another place were to take the view that contemporary majorities, legislative or otherwise, would be at all of the same spirit as in the 17th, 18th and 19th centuries. For that reason, I congratulate the noble and learned Lord, Lord Archer of Sandwell, on continuing with this initiative. I very much hope that the sometimes gloomy expressions on the Front Bench do not indicate that we shall hear from them anything other than wholehearted support for the amendment. I hope that the Government as a whole will feel able to give a lead on the issue, based as it is on reform and conscience. It seems to me to be an admirable issue for leadership from the Government.

Lord Henley

My Lords, perhaps I may speak relatively briefly from these Benches. As the noble and learned Lord, Lord Archer, reminded us, this is the second occasion on which we have addressed these matters. We covered the subject at a slightly later hour—I believe it was after dinner—on the third or fourth day in Committee. As I remember that debate, it ran somewhat wider than the amendment itself. We covered such subjects as the right of Peers to be hanged with a silken cord and the Ferrers case involving the forebear of my noble friend, who is sadly not with us on this occasion.

As I say, I speak from these Benches but I am giving my personal view. I stress that on these Benches, as I imagine is the case on the Government and Liberal Democrat Benches, this is a matter of conscience and should we have a vote, we shall be voting without the guidance and assistance of the party Whips.

As in Committee, I start by stressing my personal opposition to the death penalty and to its use. That is based partly on the reasons given by the noble Lord, Lord Randall; that is, a degree of repugnance towards such a penalty as the cold-blooded killing of offenders by a modern civilised state following the judicial process.

Secondly, I am opposed to it for the simple practical reason that there could be many occasions—and I dare say the lawyers would agree with me on this—when achieving a conviction could be considerably more difficult if certain members of the jury thought that that conviction was likely to lead to a death penalty. For that simple reason, I believe that the death penalty is unwelcome.

However, as regards the timing and place of the amendment, I do not share the same views as the noble and learned Lord, Lord Archer, and his supporters. Again, as I made clear in Committee, I do not believe it is appropriate that the final vestiges of capital punishment—and I appreciate that they are vestigial remnants; as my noble friend Lord Windlesham put it. mere historic relics—should disappear following a debate, albeit a fairly lengthy debate in this House on what is a relatively quiet Thursday afternoon and without that much notice. The noble and learned Lord, Lord Archer, looks around and seems to imply that it is a relatively full House. He will appreciate that I have seen a much better attended House to discuss important subjects.

Lord Archer of Sandwell

My Lords, I was in fact doing a random count. I have much more frequently seen an emptier House.

Lord Henley

My Lords, I have now been in this House, more or less to the day, for some 20 years and I have seen the House both full and empty on many occasions. However, on important subjects—and I am sure we would all agree that capital punishment is a most important subject—one would expect to see the Chamber considerably fuller than it is at present. Indeed, one would expect an amendment such as the one moved by the noble and learned Lord to have been flagged up in press reports and to have a degree of coverage that it has not received.

Obviously I shall not vote against the noble and learned Lord should he wish to press the matter to a Division. However, I would prefer him not to press the amendment on this occasion. Indeed, it might be more appropriate for him to return to the matter on Third Reading when we can repeat the debate in a fuller House showing greater interest. I believe that something which has not really come to the attention of—dare I say it?—that many noble Lords should not, on an occasion such as this, be pressed to a vote.

As I made clear, I am not opposed to the amendment; my opposition is to the timing of it and the fact that it is being introduced as a Back-Bench amendment on such a Bill at this stage. I hope, therefore, that the noble and learned Lord will carefully consider whether it might be more appropriate for him to try to generate a greater degree of interest in his amendment and return to the matter on Third Reading.

Lord Williams of Mostyn

My Lords, I am grateful to my noble and learned friend Lord Archer and, indeed, to all contributors to the debate. As has been said, capital punishment for murder was abolished as long ago as 1965; but, equally, the death penalty still remains as a valid—that is, capable of being used—though unused sentence for the offences which have been specified.

My noble and learned friend Lord Archer rightly made perfectly clear that the amendment would not affect the position on Armed Forces legislation. The Government do not believe that the abolition of the death penalty for these obscure offences is a priority because we have other priorities; namely, to improve the criminal justice system and take forward our various manifesto commitments in the field. The offences are very archaic and, indeed, are rarely prosecuted.

However, although it is not a priority, it is an important matter of principle; namely, should those who commit these particular offences be executed for those crimes? Like our predecessors, we believe that questions relating to the availability of the death penalty are matters for individual Members of the House to decide on a free vote, according to conscience.

As my noble friend Lord Ponsonby said, our position internationally is quite clear. Parliament has consistently voted against the death penalty. We supported the Final Declaration of the Second Council of Europe Summit as recently as 11th October 1997. We have always believed that these are matters for a free vote. The consequences of the amendment have been sufficiently spelt out to enable me not to repeat them.

I am advised that the amendment would substitute a maximum of life imprisonment, not a mandatory life sentence. I believe I should stress that fact, although it may not affect the principle. In view of the fact that the most serious examples of these offences are murder and, as the noble Earl, Lord Onslow, indicated, cover other actions such as violating female members of the Royal Family whether or not they consent, we believe that a discretionary life sentence is appropriate.

As I said, it is a matter for a free vote. I cannot advise noble Lords on what view to take on the amendment. However, according to tradition, I am entitled to give my personal view while standing here and I do so. Indeed, I made clear my view when the amendment was discussed in Committee. However, noble Lords were present at that stage and I respectfully, gently dissent from the view expressed by the noble Lord, Lord Henley, that this matter has not been sufficiently covered. There are those who choose to attend and speak and that is their choice. Alternatively, there are those who choose to absent themselves and that is their choice. I do not believe that the matter has been sprung unwittingly on an unknowing House. That is my personal observation.

As I said, I am entitled to give my view. I have always opposed the death penalty. If my noble and learned friend Lord Archer calls for a Division, I shall vote with him to abolish these offences—

Noble Lords

Hear, hear!

Lord Williams of Mostyn

However, there is a relatively minor point with which I shall deal shortly. If my noble friend's amendment is carried, we shall of course need to ascertain whether any further consequential amendments are required to attend to ancient legislation. If that proves to be the case, and if my noble friend's amendment is carried, we shall aim to bring such amendments forward on Third Reading.

Lord Archer of Sandwell

My Lords, I am most grateful to all noble Lords who have participated in the debate, especially those who supported my amendment. I am also most grateful to my noble friend the Minister. The speech he has just made from the Government Front Bench was indeed a delight to hear. I hope that we will hear many more speeches of that kind.

It is very tempting at this stage to try to address some of the issues that have been ventilated during the course of the debate. However, discarding the habits of a lifetime, I propose to resist that temptation. I would be a faint heart indeed if, with so much encouragement, I did not offer your Lordships the opportunity of taking a decision. I propose, therefore, to test the opinion of the House.

5.55 p.m.

The Deputy Speaker (Baroness Cox)

My Lords, the Question is that Amendment No. 82 shall be agreed to. As many as are of that opinion will say "Content". To the contrary, "Not-Content". I think the Contents have it. Clear the Bar.

Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 31. A Division therefore cannot take place, and I declare that the Contents have it.

On Question, amendment agreed to.

Lord Goodhart moved Amendment No. 83: After Clause 27, insert the following new clause—


(".— (1) In section 1 (rape of woman or man) of the Sexual Offences Act 1956 ("the 1956 Act"), for paragraph (b) of subsection (2) there shall be substituted the following paragraph— (b) at the time he does not have reasonable grounds for believing that the person is consenting to sexual intercourse. (2) Subsection (2) of section 1 (meaning of "rape" etc.) of the Sexual Offences (Amendment) Act 1976 ("the 1976 Act") shall cease to have effect. (3) Section 2 (restrictions on evidence at trials for rape, etc.) of the 1976 Act shall be amended as follows—

  1. (a) in subsection (1), for the words "a rape offence" there shall he substituted the words "an offence listed in the Second Schedule to the Sexual Offences Act 1956 and triable on indictment"; and
  2. (b) for subsection (4) there shall be substituted the following subsection—
(4) If leave is given under subsection (1) above, evidence may he adduced and the person charged may be questioned in cross-examination at the trial to show that he has committed, been convicted of or been charged with any offence listed in the Second Schedule to the Sexual Offences Act 1956. (4) In subsection (1) of section 4 (anonymity of complainants in rape etc. cases) of the 1976 Act, after paragraph (b) there shall be inserted the following paragraph— (c) after a person is accused of a rape offence, no matters likely to lead members of the public to identify that person as the person so accused shall, unless that person is convicted of the offences, be—
  1. (i) published in England and Wales in a written publication available to the public, or
  2. (ii) included in a relevant programme for reception in England and Wales.".").

The noble Lord said: My Lords, we have been deprived of the opportunity of voting on Amendment No. 82 but I express the pleasure of these Benches that it was accepted. Amendment No. 83 that we now discuss involves some important changes to the procedure in trials for serious sex offences, particularly rape. I should make it clear at this point that I do not intend to press this amendment to a vote because I believe that it would be wrong to do so on an issue of this importance which has not been raised until the Report stage. In any event I understand that the Government are conducting their own review of the matters covered by this amendment.

This amendment was not raised earlier because at the time of the Committee stage of this Bill the issues covered by the amendment were still a matter of internal debate within my party. That debate was resolved by a substantial majority of the party at its Spring conference last weekend. I am therefore anxious to raise these issues as soon as possible for discussion even if not for a vote. The amendment has three purposes. The first purpose is to remove the defence of mistaken belief in consent where that belief is not reasonable. That is covered by the proposed new subsections (1) and (2) of Amendment No. 83.

In the great majority of cases there are one of two defences to rape, either, "It was not me" or, "She consented". If the defence is, that she consented, the prosecution has to prove that the woman did not consent. That obligation rightly rests on the prosecution and is not affected in any way by this amendment. The defendant then has another string to his bow. He can say, "I thought she consented" even if she did not. The state of the defendant's belief is solely within his own knowledge and is difficult to disprove. Of course the rapist who springs out on a strange woman is not likely to be believed if he raises that defence, but it is much more difficult to be satisfied that the defendant is lying where some consensual sexual intimacy has occurred before the rape takes place. For example, I refer to the case of a young man who picks up a girl in a pub and takes her outside.

If one believed that mistaken belief in consent should be a defence, even where that belief is not reasonable, then the law should not be changed even if it provides a loophole by which the guilty can often escape. But I do not believe that unreasonable belief should be a defence. If a man wants sex with a woman, or indeed with another man—rape applies to an assault on either sex—he should not go ahead unless he knows that the other person has agreed to it. If he does not have her consent, or if he does not have reasonable grounds for believing that he has her consent, he should bear criminal responsibility for his action. Genuine belief in consent which is not reasonable may be a ground for mitigating the sentence but I believe that it is not a ground for escaping conviction.

The proposed new subsection (3) of the amendment deals with another matter; namely, the cross-examination of an alleged victim on her sexual history. This is, of course, something that is now permitted—except so far as sexual history between the defendant and the complainant is concerned—only with the leave of the judge. I think it was originally contemplated that that leave would be given only in exceptional circumstances. However, it is quite widely given, no doubt because judges are worried that if they refuse it that may be a ground for appeal. First, we say that the leave of a judge which is currently required only in rape offences should be extended to other serious sex offences. I apologise that there is a misprint in the amendment. I do not think that is my fault. The phrase "liable on indictment" in the amendment should of course be "triable on indictment".

Secondly—this is a change—the proposed new subsection (3) seeks to put the defendant's sexual history in issue where leave is given to cross-examine the complainant on her sexual history. There is, of course, a general principle that where the character of the prosecution witness is attacked, the defendant puts his own character in issue in evidence. This measure gives effect to a similar principle. Where the defence raises an issue as to the sexual behaviour of the woman, we believe he should not be exempt from being cross-examined and evidence being given as to his own sexual record.

Thirdly, the proposed new subsection (4) of the amendment seeks to extend to the defendant the anonymity which is given at present to the victim. This excludes a right to identify them in the press or in the broadcasting media unless and until convicted of the crime. We believe that is only fair and that the right to anonymity should apply both to the complainant and to the victim while the trial is proceeding. At our Spring conference the party also endorsed restrictions on cross-examination by a defendant in person, similar to those proposed in Amendment No. 84 which we shall therefore support. There is great and justified concern about the law and procedure in rape trials. We believe that amendments on the lines of those numbered 83 and 84 would do much to relieve that concern.

For the reasons given, I shall not press Amendment No. 83. However, I hope to see its contents reappear in due course in government legislation. I beg to move.

Earl Russell

My Lords, I support the amendment, to which I have put my name. The point of the first section of the amendment is the reversal of burden of proof where the defendant claims that the alleged victim consented. This is a very limited scope. The burden of proof still rests on the prosecution to prove that intercourse took place and that the victim did not consent. There is no change in that. The change in the burden of proof only arises when the man says, "I believe she consented".

Part of the problem that is being addressed in the amendment arises from the Morgan case, of which some of your Lordships may have heard. In the Morgan case, the victim's husband assured four of his military colleagues that his wife loved kinky sex, the rougher the better, and to take no notice of anything she said. The wife objected, to put it no higher. Because of what the husband had told them, the men concerned, the accused, took no notice. It was found on the existing law that they had a good ground for what they did.

Where a man claims that the woman consented, as my noble friend said, it is difficult to see into his mind. You cannot take his bare, unsupported word that he believed the woman consented. People have been known to believe most extraordinary things against the weight of the evidence. I think that it is quite fair to ask the man who says that, "Why did you believe that she consented?", and quite fair to require him to prove the contention he makes. That is as far as that goes.

The provision is in line with other areas of the law. Where a man is accused of intercourse with a girl under the age of consent, and he says that he believed she was over the age of consent, he has to show that he had good reason for believing that she was over the age of consent. The burden of proof similarly rests on him. Your Lordships may agree that it is quite right that the law is as it is in that respect.

Where a man is charged with bigamy, and where his defence is that he did not know he was committing bigamy, he did not know that the woman had a previous husband alive, in that case, similarly, I understand that the burden of proof rests on him. Your Lordships may agree that it is right that that is so.

The second part of the amendment applies only where the woman's previous sexual history is also put in issue. It is an amendment based on the principle of the level playing field. While I personally would prefer not to have the previous sexual history of either party taken in evidence, unless it was the sexual history of those two parties with each other, if it is to be taken in evidence at all there is a strong case for arguing that that should be on the basis of the level playing field.

The third plank of the amendment introduces anonymity not only for the woman but also the man. Again it is a level playing field amendment. Where you face a charge of this kind, the mere publicity is itself a severe penalty. You are recognised on buses. Your relations find out about the case from finding your face pictured on paper used to wrap kippers. These penalties are severe. The recognition may continue for years. It is a severe handicap to normal human relations. It is the contention of the amendment that that punishment should not be inflicted on those who are found innocent. If you are innocent you should not be punished. I think that that is only justice.

6.15 p.m.

Lord Ackner

My Lords, I may be entirely in error but it seems to me that the amendment overlooks Section 1(2) of the 1976 Act. It provides as follows: It is hereby declared that if at a trial for a rape offence the jury has to consider whether a man believed that a woman was consenting to sexual intercourse, the presence or 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". I should have thought that that makes perfectly good sense. One has the subjective test in relation to the knowledge and appreciation of the accused; and then one has drawn to the attention of members of the jury that in considering whether they believe his proposition that the woman consented to the sexual intercourse, reasonable grounds for such a belief is a matter to which they are to have regard. I should have thought that that was a satisfactory situation. It was the result of a committee set up especially to consider this matter, presided over by a highly experienced lady judge, Mrs. Justice Heilbron.

In regard to the second part, the same committee provided in Section 2(2) the prohibition on the cross-examination with regard to previous sexual history. But it provided a let-out in these terms: The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made to him in the absence of the jury by or on behalf of the defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would he unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked". It is only when the judge is satisfied that it would be unfair to the defendant that leave is given. And it would be unfair to the defendant if it went to the very core of his defence to bring out the material about the complainant's sexual history in particular with regard to him. The judge says to himself, "Is this necessary for the defence? If it is, then I will make a special order". Why on earth should that then result in an exception to one of the principal rules of criminal law, that an accused's character is not put before the jury? It can only be done on the basis that the defendant himself has so attacked the complainant that the exception applies, that when you attack the character of a prosecution witness then, for the sake of the level playing field, your own character is put before the jury.

But the defendant has ex hypothesi obtained the consent of the judge in order to put his defence forward. He is not allowed to put the defence forward on the basis of just going essentially to credibility. For instance, it might be said, "It is my defence that this woman and I have lived together for 10 years and that she is highly sexed," and whatever other characteristics she may have, "and this is what happened in truth and in fact". It penalises a defendant on the basis that if he puts forward this defence, then his sexual history can go in: evidence can be adduced that he has been convicted or charged with any offence listed in the second schedule.

Lord Goodhart

My Lords, will the noble and learned Lord accept that the position under Section 2(1) of the 1976 Act is that, in fact, leave is only needed when the sexual history that is sought to be brought in evidence is the sexual history of the woman's relationships with other men? So our amendment would not apply to a defendant who simply seeks to raise as an issue, as he is entitled to do without leave, the sexual history between himself and the complainant.

Lord Ackner

My Lords, the actual provision of Section 2(1) reads as follows: If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall he adduced or asked at the trial, by or on behalf of any defendant at the trial about any sexual experience of a complainant with a person other than that defendant".

Lord Goodhart

That is correct— with a person other than that defendant".

Lord Ackner

My Lords, the permission to ask those questions, which can be achieved only on a separate application to the judge, is granted only if it would be unfair to the defendant to refuse to allow him to ask those questions. The unfairness could only be unfairness if the refusal meant that he could not properly put before the court his full defence.

So the proposition in this amendment is: "If you are going to be allowed to put forward your true defence, then you are going to have the entirety of your sexual character put in evidence, and everybody knows that, if that occurs, the inevitable result will be that you will be convicted". It would therefore mean that the accused would be inhibited from making the application which Parliament thought he would be perfectly entitled to make with the special leave of the judge. The consequences of getting that leave and taking advantage of it would be to let in—to his profound prejudice—the sexual activities which are covered by the amendment.

That is very unfair. There are many exceptions, rightly made, in regard to sexual offences, but to carry still further a special exception which can only do harm to the defendant seems to me to be going too far.

The Solicitor-General (Lord Falconer of Thoroton)

My Lords, these amendments are a valiant attempt to deal with a number of difficult problems in the law on rape. The proposed new clause deals with various different aspects of the law, including the definition of consent which goes right to the heart of the law on rape. It is a question of immense significance. I do not think it is appropriate to be dealt with in a quickly tabled amendment this late in the course of the Bill.

Subsections (1) and (2) on the definition of consent seemed to be intended to make it easier to prove a charge of rape. The Government have been concerned for some considerable time at the low success rate in prosecutions for rape. We are taking action in relation to that and I shall turn to that in a moment. While I understand why the noble Lords opposite have proposed these changes, they do not provide a better way forward.

The offence of rape is committed where a man has sexual intercourse with another man or woman; and at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it. The effect of that, as the noble Lord, Lord Goodhart, pointed out, is that a man cannot be convicted of rape at present where he believes, even mistakenly, that the other is consenting, because if he had such a belief he cannot have intended to commit rape or have been reckless as to whether consent was given.

As the noble and learned Lord, Lord Ackner, pointed out, Section 1(2) of the Sexual Offences (Amendment) Act 1976 permits the jury to have regard to whether or not the grounds for his belief were reasonable, but only on the issue as to whether he believed that there was consent or was reckless as to whether or not there was consent.

The effect of what is proposed would be that, instead of the jury being asked about the accused's state of mind, it would be for the jury themselves to ask: "At the relevant time, did the defendant have reasonable grounds for believing that the person was consenting to sexual intercourse?" If he did not have reasonable grounds, then assume the other elements, and if in particular the commission of the sexual intercourse was proved, he would be guilty of rape.

This proposal is not simply a change to the burden of proof, as the noble Earl, Lord Russell, suggested, but would mark a fundamental change in the law on rape. At present a man can be convicted only if he has intercourse knowing or being reckless as to whether the alleged victim consented. The proposal would allow the jury to say subsequently that such a person did not have reasonable grounds for any actual belief that he had, and was therefore guilty.

I could not recommend such a change, well-intentioned though it is. Later this year the Government will have available the report of a major research study into the attrition rate in rape cases; namely, the difference between the number of complaints that are made of rape and at the end the number of convictions. The Government must first identify the specific problems of why rape cases fail, then attempt to deal with them rather than the approach adopted by the noble Lords' amendment to change the law fundamentally without the benefit of that detailed research and without consultation on this most controversial of subjects.

Turning to the other effects of the amendment, subsection 3(a) extends the restriction on cross-examination on a victim's previous sexual history, currently limited to rape, to other serious sexual offences, while the effect of subsection 3(b) is to allow in evidence, during a rape or sexual offence trial, details of a defendant's previous convictions or any charges—whether or not they resulted in conviction—previously laid against him for rape or sexual offences.

As this House is aware, to take forward our manifesto commitment to provide greater protection to victims in rape and other serious sexual offences cases, we established in June last year an interdepartmental review of the way in which vulnerable or intimidated witnesses are treated in the criminal justice system. One of the important issues that group is examining is the law in respect of the cross-examination of victims about their previous sexual history in rape and serious sexual offence cases. The group is due to report to Ministers shortly; it has had its last meeting. One should wait for that report before proceeding on a change of the sort identified by those opposite.

The law governing the admission of evidence of previous convictions in criminal proceedings applies to all criminal offences and not just offences of rape. Therefore, it is important that this issue is considered in the wider context. Such a review is currently being undertaken by the Law Commission. This is recognised as an exceptionally complicated area of the law and I believe it is important that before we embark on any reform in this area the law is subjected to rigorous examination. We shall of course give further consideration to changes in both these areas in the light of the work of the Vulnerable or Intimidated Witnesses Review and the work of the Law Commission.

On subsection (4) of the amendment, relating to the anonymity of a defendant, I appreciate the concerns of those who have suffered from being identified as an alleged rapist. Society attaches a stigma to those accused of such an awful crime. I also recognise that those accused of such crimes once had anonymity. But that anonymity was removed. Why? First, because in a system of justice in which openness is a fundamental principle, defendants are generally named, even in the case of murder and other reprehensible crimes. Why should defendants in rape cases receive special protection?

Secondly, anonymity for the complainant is designed not only to protect victims from hurtful publicity for their sake but to encourage them to report crimes of rape to ensure that rapists do not escape prosecution. Such an argument does not apply to the accused where the arguments are about preventing personal hurt and embarrassment rather than improving justice.

Thirdly, an argument advanced for giving the complainant anonymity is that he should be treated on an equal basis to the victim. I do not believe that that is right. A defendant's equality lies with other accused persons and it is an acquittal which will give him public vindication.

Fourthly, anonymity might help to ease the pain suffered by defendants in rape cases, but even without all the publicity some defendants will doubtless experience suffering and trauma. Notwithstanding press anonymity, they may still be identified by their local communities.

Lastly on anonymity, subsection (4) would do nothing to help deal with the problems which subsections (1) and (2) seek to address—namely, the problems surrounding the low conviction rates for rape. Often the naming of the accused can be used to provide the public with information which they can pass on to the police. This can be vital in obtaining the necessary evidence against an accused.

Attractive though this amendment may superficially seem, for the reasons given I urge your Lordships to reject it.

Lord Goodhart

My Lords, I am grateful to the noble and learned Lord the Solicitor-General for his reply. As I made clear, the purpose of the amendment is to raise the issues, not to seek a decision on them this evening. There are arguments on both sides. Some of the reservations felt by the noble and learned Lord the Solicitor-General are shared by some of my noble friends, who are not unanimous on the subject. I shall not go through them again at this point, but there are important arguments in the other direction. I hope that the review which the Government are undertaking will take those arguments into account. Serious problems are involved. I believe that some, if not all, of the provisions proposed would help to ameliorate those problems.

Perhaps I may make two points in reply to the noble and learned Lord, Lord Ackner. First, he suggested that we had overlooked subsection (2) of Section 1 of the Sexual Offences (Amendment) Act 1976. We certainly did not overlook it since the amendment specifically proposes that it should be repealed. Views on whether reasonable grounds should be had regard to as a defence may have changed since 1976.

Secondly, leave to bring out a defendant's sexual history under the existing law, which we do not seek to change, is required only as regards the complainant's sexual history with other persons. The amendment does not bring the defendant's personal history into account if all he raises is his sexual history with the complainant. The amendment applies only where sexual history with other men is involved and where the defendant's defence is, "Because the complainant consented to sex with X, Y and Z, I therefore reasonably believe that she consented to sex with me." That brings the complainant's character into issue and in that case the level playing field of allowing the defendant's character to be brought in is entirely justified. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.