§ 7.13 p.m.
§ Baroness Anelay of St. Johns moved Amendment No. 84:
Before Clause 28, insert the following new clause—
§ ("Trial procedure for rape and indecent assault
§ TRIAL PROCEDURE FOR RAPE AND INDECENT ASSAULT
.—(1) A defendant charged with a rape offence or an offence of indecent assault shall not personally ask questions of a complainant in the course of a trial related to the charges.
(2) In this section—
complainant" means a woman or man upon whom, in a charge for a rape offence or an offence of indecent assault, it is alleged that rape or indecent assault was committed, attempted or proposed; and
a rape offence" means any of the following, namely rape, attempted rape, aiding, abetting, counselling and procuring rape or attempted rape, incitement to rape and conspiracy to rape.").
§ The noble Baroness said: My Lords, this new clause would introduce a prohibition on defendants in trials of rape and serious sexual offences personally cross-examining their alleged victim. As I have observed before, this is a sensitive and problematic issue which is of vital importance to those victims who suffer the trauma of rape and indecent assault.
§ I spoke to this amendment in Committee on 12th February and I am grateful to all who have subsequently written to me indicating their support, and particularly to those who act on behalf of the victims of rape, including those who counsel them at the Old Bailey. At that stage I withdrew my amendment and I had not intended to table it at Report. Therefore, I feel that I should explain to the House why I changed my mind and am moving it today.
§ When the noble and learned Lord, Lord Falconer of Thoroton, responded to my amendment on 12th February, he referred (Hansard, col. 1357) to the interdepartmental review of the way in which vulnerable or intimidated witnesses are treated in the criminal justice system, including a consideration of ways to prohibit unrepresented defendants from personally cross-examining victims in rape and serious sexual offence trials. He said then that the group 872 would meet again in March and hoped that it would report soon after. Today, on the previous amendment, he told us that it has had its last meeting.
§ On the basis of what the noble and learned Lord said in Committee, I decided that it would be proper for me to seek the opportunity to debate the issue in depth outwith the context of this Bill and after the publication of the report to which the Minister referred. I am grateful to my noble friend Lady Byford for tabling a Motion for debate in the form of an Unstarred Question.
§ I decided to bring the amendment back on Report only when I read stories in the press 11 days ago of a statement made by the Home Secretary on that subject. I have not been able to find any reference to his statement on the Home Office website nor in its official press releases. The Home Office told a House of Lords Library researcher that the statement was made in an interview with The Times. The Home Secretary told The Times that men accused of rape are to be barred from cross-examining their alleged victims in court under new laws. He said that witnesses would also be protected from prurient questioning by banisters, a subject mentioned on the previous amendment which was tabled by noble Lords who, at the moment, are to my right, which seems an odd way of describing them.
§ I was puzzled that what seemed to be impossible one week when I suggested it—humble though I am—was suddenly possible the next week when the Home Secretary not only suggested it, but stated that it would happen. I welcome that part of his statement which refers to my amendment—I say that without reservation—but I should like the Minister to explain how the Government have changed their mind about their objections to my proposal. As they have obviously changed their mind, I ask them whether they will accept my amendment now. If the Minister is still worried that I do not provide an alternative method by which witness evidence is tested, I should, of course, be happy to return at Third Reading with an amendment suitably worded to achieve that objective.
§ I shall not abuse Report procedure by attempting to repeat at length the arguments that I put in Committee to justify my amendment, but I invite the Minister to answer a point that I made in Committee which he did not seem to address then; nor has he answered it since. I argued that the principle of having the right personally to cross-examine the alleged victim had already been breached in English law and that, as far as I was aware, there was not any evidence that we had thereby breached the European Convention on Human Rights. I referred the Minister to Section 34A of the Criminal Justice Act 1988 which provides that a defendant shall not cross-examine in person any child witness who is the alleged victim of certain offences, which include rape and indecent assault. Does the Minister agree that it is possible and acceptable, in principle at least, to extend the Section 34A provision to adult victims of rape and indecent assault?
§ The Home Secretary's proposals are far more radical and wide-ranging than mine. Of course, I expect that he carefully considered the evidence and advice available to him before announcing such important proposals 873 publicly. Therefore, I invite the Minister to consider whether it is possible to accept my more modest amendment today. If it is not possible, I invite the Minister to explain why the alleged victims of such crimes must, it seems, wait another year before the Government take the course which they have already decided to adopt. I am sure that the Government would not wish to delay any longer than absolutely necessary any measure that would introduce such provisions. I beg to move.
§ Lord Goodhart
My Lords, as I indicated in my speech on the previous amendment, my party now supports the amendment just moved by the noble Baroness, Lady Anelay. It does not necessarily have the unqualified support of all my noble friends but it has my support and I encourage the Government to accept it. The jurisprudence of the European Court of Human Rights makes it clear that a restriction of this kind on the rights of a defendant in person does not contravene the European Convention on Human Rights. There have been a number of cases over the past two or three years in which the rights of a defendant in person have been abused.
It is in any event absolutely clear that anyone who is charged with an offence as serious as rape is either deeply misguided or malicious if he decides to defend himself. It is essential that legal aid should be provided. I take it that that is implicit in the amendment and that legal aid will be provided to any defendant who is denied the right to defend himself, except in the very exceptional case where the defendant is sufficiently rich to be able to afford to pay his own legal expenses. In those circumstances, we believe that this amendment is justified. There are other matters that can be added to it. There is a possibility that if a defendant absolutely refuses to instruct counsel to appear for him the judge may he able to appoint an amicus curiae to examine the complainant and put the questions that can properly be put to her. The principle underlying this amendment is one that I fully support. I hope that the Government will see fit to accept the principle if not the precise wording.
§ Lord Ackner
My Lords, before the noble Lord sits down, perhaps he can assist me in regard to Article 6(3)(d) of the European Convention on Human Rights. That provision gives to everyone who is charged with a criminal offence the right to examine, or have examined, witnesses against him. I can find nothing in the convention that in any way prohibits a person from acting on his own behalf. There is nothing to oblige him to accept lawyers to act for him. Can the noble Lord inform the House of the jurisprudence of the European Court of Human Rights that supports what is proposed in the amendment, which would otherwise breach Article 6(3)(d)?
§ Lord Goodhart
My Lords, there is a decision of the European Court of Human Rights which states specifically that the defendant does not necessarily have the right to appear in person provided that he is able to instruct a lawyer, or is provided with the finance to do 874 so. The case relates to a decision of a German court. I do not come armed with the name of that case, but I shall be happy to write to the noble and learned Lord and provide him with that information.
§ Lord Monson
My Lords, I was not present when this matter was debated at Committee stage, so I apologise if the argument that I am about to advance has already been made. Although the status quo is on occasion unsatisfactory and unfair to the victim, one wonders whether this amendment tilts the balance a little too far the other way. I note that some of the press shares that view. A man who is convicted of rape is certain to spend a long time in prison even if the rape is non-violent or involves a last-minute change of mind on the part of the victim. Therefore, it is extremely important to ensure that the conviction is 100 per cent. safe. Surely some compromise can be found to permit the trial judge to intervene much more rapidly and decisively when the cross-examination by the defendant becomes aggressive and offensive.
§ Viscount Tenby
My Lords, I rise to support the amendment very ably moved by the noble Baroness, Lady Anelay. In recent years the country has been disturbed by the spectacle of defendants in rape cases conducting their own defence and subjecting the victims to prolonged cross-examination, probably often for reasons of sexual gratification. I understand very well the strong feeling among practitioners in the law so admirably expressed by my noble and learned friend Lord Ackner about the right of a defendant to conduct the cross-examination of the alleged victim. However, it is the duty of the presiding judge to ensure that matters do not get out of hand. Perhaps that is what has gone wrong in the past. Nevertheless, I too have understood from the media that something is to be done about it, possibly in another criminal justice Bill next year. But if even one victim suffers in this way in the intervening period it is surely one too many. I beg the noble Lord the Minister to look at the matter again with his customary compassion and respond favourably to this amendment.
My Lords, there is a dilemma here, is there not? On the one hand it is intolerable that defendants should be allowed to cross-examine rape victims interminably over hours and sometimes days. Recent examples have been paraded before us. On the other hand, if it is by any means possible, a defendant should always be allowed to represent himself and conduct his own case and should not be forced, if he can be, to accept legal representation.
Is there a way out of this dilemma? I suggest that there is. It appears to have been overlooked by judges and others that it is the judge at trial who is in charge of the case. It is his task to see that justice is done and that the proceedings are conducted in fairness to both sides. Plainly, cross-examination of the kind that we have read about is neither just nor fair. Accordingly, it is the judge's right and duty to see that such cross-examination and behaviour stops, and he can do 875 it. If necessary, he can invite the jury to retire while he explains to the defendant the proper limits of cross-examination in terms of time, relevance and brevity of questions and number of questions. Then or later he can, if necessary in the absence of the jury, tell the defendant that if he goes on he will be stopped; or he may be given a period of time during which cross-examination can take place and beyond that time further cross-examination will not be permitted.
I believe that that is the way out and it is not necessary to have any statutory intervention to solve the dilemma. Provided the judge acts justly and fairly in any particular case, as one expects he would, without doubt his actions would, if necessary, be upheld by the Court of Appeal (Criminal Division). It is perhaps a great pity that the occasion has not arisen for that court to pronounce upon this matter. No doubt very shortly it will do so, but in the interim I respectfully suggest that this amendment is unnecessary.
§ 7.30 p.m.
§ Lord Thomas of Gresford
My Lords, I endorse what the noble and learned Lord said a moment ago. I intervene just to prevent any criticism of the trial judge. In the first of the two cases about which I know, which attracted considerable publicity, the judge was, and is, an experienced, competent and caring lady with a considerable reputation for the way in which she conducts her court. When that unique, as it was for her, situation arose, she was faced with a dilemma: did she intervene with the defendant to the point where the jury thought that she was entering into the arena, and therefore would take a view hostile to the judge, and more in favour of the defendant, thereby raising the possibility of miscarriage of justice, or, could she be sure that a robust intervention at an early stage would have carried with it the support of the Court of Appeal? As the noble and learned Lord the former Lord Chief Justice said, it is a situation which has never come before the Court of Appeal.
In Committee and today your Lordships have heard from senior members of the judiciary that that latter fear need not have concerned the judge; that she would have had the full backing of the Court of Appeal had she taken the robust view that I am sure she would have wanted to take in that case. I say nothing, one way or another, about the merits of the amendment, but I am concerned that her reputation is maintained, as it most certainly should be.
§ Lord Meston
My Lords, this is an important amendment, because a few cases attract a large amount of publicity, and cause a great deal of distress to the victims of rape involved in those cases, and also have a tendency to deter other complainants of rape from reporting the matter to the police.
As has been explained in an interesting article in the Journal of Criminal Law for February 1998, there can be a direct conflict—sometimes acute—between, on the one hand, the need to protect the dignity of the victim, and, on the other hand, the fact-finding process in which 876 the prosecution has to prove its case beyond reasonable doubt, and in which the defendant has the right to test the evidence against him.
The amendment would not be necessary if judges were confident that there was power firmly to curtail cross-examination. Like my noble friend, I know the two judges in the two most recent notorious cases, and was frankly surprised that neither of them, whom I know to be firm but fair, felt able to curtail the cross-examination which attracted such publicity in the press. It is for that reason that I suspect that there is insufficient guidance on their ability to curtail cross-examination from the Court of Appeal at the moment.
Of course the matter does not stop there, because, as the noble Baroness, Lady Anelay, said, it must be looked at now in terms of the European Convention on Human Rights. In Committee, reference was made to the case of De Oliveira. which, as I understand it, was concerned with a judge stopping a defendant's personal cross-examination in a case involving a child. That of course is not on all fours with a case involving adult rape. Nevertheless, it is important that any development in that area of the law so far as concerns us is compliant with the convention, not merely from the point of view of the defendant but from the point of view of the victim, because, in the article to which I have just referred, mention is made of a victim of such cross-examination called Julia Mason, who waived her anonymity after her harrowing six-days' cross-examination by her attacker, to take her case to the European Court of Human Rights.
Unfortunately I do not know, and have had no opportunity to discover, what has happened to that case. Clearly there is, as has been pointed out, not least by the noble and learned Lord, Lord Lane, a dilemma which is now heightened by the need to comply with the European convention. This is a matter which requires a great deal of thought which needs to be undertaken urgently.
§ Lord Ackner
My Lords, I agree entirely with what my noble and learned friend the former Chief Justice said. I do not believe that what he said—except that it was said more eloquently—differs from what I said in Committee. This situation is a novel one. To deal with novel situations, we usually have to have new techniques.
I can well understand any judge realising that if he has to intervene frequently in front of a jury, he runs the risk of the jury thinking that he is biased against the defendant. I do not know how the two judges referred to handled the cases. It may well be that they did not take advantage of a judge's discretion to ask the jury to retire and then to handle the matter in the retirement.
There is no difficulty in discovering—one should know it before the case starts—what is the nature of the defence, and what are the likely issues. With the jury outside, a sensible conversation can take place with the defendant with the judge saying, "What is it that represents your defence? Tell me what you are seeking to establish." That having been said, back comes the jury, and the cross-examination then begins. If the 877 cross-examination becomes an abuse of the right to cross-examine, then the jury is sent out yet again, and the matter is dealt with on the basis, "You must not cross-examine in that way". As my noble and learned friend Lord Lane said, a time limit can be placed upon the cross-examination.
There is no danger of the judge being rebuked, or the trial aborting in any way, so long as the judge has acted fairly. He can act both firmly and fairly. I instanced on the previous occasion that the self-same problem has arisen in civil cases where there has been a suggestion that the judge was not entitled to give limited time for cross-examination or limited time for argument. There is not the slightest doubt that in civil matters the judge is entitled to run the case as he thinks appropriate, so long as he acts fairly. That is why one should wait to see what emerges from the Court of Appeal (Criminal Division).
What I suspect is happening—it accounts for the silence—is that that Court of Appeal, very understandably, likes to illustrate what are the correct principles, by having a case or cases brought before it so that it can then link its wisdom to the particular case or cases. While that is being waited for, it would be premature to seek to put forward an amendment as narrow as this. For those reasons, I continue to resist the amendment.
§ Lord Falconer of Thoroton
My Lords, the amendment, as we are all aware, was provoked originally by the awful cases where rape victims were cross-examined interminably in person by unrepresented defendants. The Government, and the whole House, have repeatedly made clear their determination to ensure that vulnerable witnesses, including rape victims and victims of serious sexual assault, should not have to endure such an experience.
As the House is aware—I mentioned it on the previous occasion and again earlier today—in order to take forward our manifesto commitment to provide greater protection to victims of rape and other serious sexual offences, 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. That group has been specifically asked to consider ways to prevent unrepresented defendants from personally cross-examining victims in rape and serious sexual offence trials. The group met on a number of occasions and had its final meeting on 13th March 1998. The result of its work will be reported to Ministers soon.
The new clause proposed by the noble Baroness provides for a mandatory prohibition on defendants in rape and indecent assault trials personally cross-examining the victim. It makes no provision for arrangements to enable the victim's evidence to be tested. As your Lordships will appreciate, in rape trials in particular it is the victim's evidence which is normally crucial and in the interests of justice it is important that any solution addresses that matter.
878 Clearly, as many noble Lords said, it is important to balance the needs of the victim and his or her right not to be subjected to this type of treatment with the right of the defendant to a fair trial. The working group has been examining that issue in the broader context of the other measures being considered to provide greater protection to vulnerable or intimidated witnesses.
Obviously, we must take account of our obligations under the European Convention on Human Rights for the reasons given by the noble and learned Lord, Lord Ackner, during our previous debate on the subject. As regards the state of the jurisprudence, the De Oliveira case is about children where the balance might be regarded as being struck differently. There is also a case called Croissant v. Germany, referred to by the noble Lord, Lord Goodhart, when replying to the noble and learned Lord, Lord Ackner. It is not on all fours, but it gives some indication that preventing an unrepresented defendant from cross-examining would be allowed. At this stage, I am not in a position to answer the noble Baroness's question as to whether we say that it would definitely be allowed under the European Convention on Human Rights because further advice will be required. However, there are indications—I go no further than that—that it would be allowed.
Various noble Lords, in particular the noble and learned Lords, Lord Lane and Lord Ackner, pointed out that the matter can be dealt with simply by judges being more robust in their handling of trials by ensuring that there is not oppressive cross-examination by an unrepresented, or any, defendant. I do not believe that one can be so confident that that would be the position, particularly having regard to the fact that the incident reported in the press a few weeks ago was not isolated. I make it clear that this Government remain committed to measures which, consistent with the interests of justice, protect victims of rape or serious sexual offences from direct cross-examination by the defendant.
I am not aware that my right honourable friend in another place has said anything inconsistent with that approach; namely, that that is the aim of the Government and a working party is considering ways in which it might be achieved. My right honourable friend has gone no further than that and I note that the noble Baroness did not refer to any direct quote to the contrary. There is no inconsistency between the position I made clear in Committee and the position I have made clear again today. The matter is under active and urgent consideration and in the light of those assurances I hope that the noble Baroness will withdraw her amendment.
§ Baroness Anelay of St. Johns
My Lords, I thank all noble Lords who have taken part in this brief debate. I shall not press the matter to a Division tonight. Issues have been raised which we can more suitably explore when we have an opportunity to debate them both on an Unstarred Question and in the criminal justice Bill. The Home Secretary stated unequivocally to The Times that in that Bill the Government would introduce measures of the nature I outlined. The statements which he made to The Times, as opposed to a Statement to this House, 879 related to policy and legislation to be introduced. I look forward to those matters being brought to the House for debate.
I thank the noble and learned Lord for his courteous reply and for taking us a little further in relation to the European Court of Human Rights. I appreciate his comments and I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
§ Lord Hoyle
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begins again not before 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.