§ 5.3 p.m.
§ House again in Committee on Clause 37.
§ [Amendments Nos. 109A to 111 not moved.]
§ Clause 37 agreed to.
§ Clauses 38 and 39 agreed to.
§ Clause 40 [Restriction on evidence or questions about complainant's sexual history]:
§ Lord Dholakia moved Amendment No. 112:
§ Page 28, line 19, after ("behaviour") insert ("or any medical history in relation to mental disorder").
§ The noble Lord said: Chapter III deals with the protection of complainants in proceedings for sexual offences. This amendment is grouped with Amendments Nos. 123 and 126. To save time, perhaps I may speak to all three.
§ I have been associated with a number of mental health charities and I wish to express their concern. Clause 40 places restrictions on evidence or questions about a complainant's sexual history in the case of sexual offences. I believe that the same protection should be afforded to evidence or questions about a complainant's history of mental health problems. Such questions can be used to prejudice the jury against a witness and attack that witness's credibility and character. Amendments Nos. 112 and 123 seek to introduce restrictions so as 40 to avoid such situations. It should be stressed that this provision relates to the protection of a victim of rape or sexual assault who has a history of mental health problems against the defence attempting to use questions about his or her mental stability or to attack his or her credibility and character.
§ Cases have been brought to my attention where general evidence of a complainant's history of mental health problems has been used to undermine her credibility as a witness without any reference to her mental state at the time of the incident. These amendments are designed to prevent the introduction of this type of evidence unless it is related directly to events at the time of the alleged offence.
§ I beg to move.
§ Lord Desai
I support the amendment. I apologise to the Committee; I did not speak at Second Reading and rise to speak only to Clause 40. The clause is crucial; however, there are problems. One problem, as pointed by the noble Lord, Lord Dholakia, relates to the evidence that a complainant is asked to present in relation to her history.
The amendment concentrates only on mental history. It is right that there should be restrictions on the kind of evidence that is presented. Because the question of mental stability and instability is delicate, especially in relation to the issue of rape, where the person's mental state may be delicate anyway if he or she is being attacked, it is important to guard the rights of the complainant. Therefore, whatever care can be taken to protect the rights of the complainant is to be welcomed. Therefore I support the amendment.
§ Lord Lester of Herne Hill
I, too, support the intention behind my noble friend's amendments. As he said, Amendment No. 112 would amend subsection (1) of Clause 40 to prevent questions about any medical history in relation to mental disorder being put without the leave of the court. I support that intention. However, I have some concern about the wording.
The amendments are not wide enough to prevent a woman complainant from being asked, for example, whether she has ever had an abortion. It is important to restrict a defendant's access to an alleged rape victim's medical and therapeutic records, but that has to be done with sensitivity and balance.
There was a notorious case in Canada in which a bishop brought into open court the counselling records of the women whom he was found to have raped. In 1997 the Canadian Parliament enacted amendments to the Canadian criminal code to restrict a defendant's access to records of that kind by requiring a specific application to be made to the judge for access. The judge is then required to consider a specific series of factors which balance the accused's ability to make full answer and defence and the victim's right to personal privacy and equality of treatment.
41 I mention that at this stage because, whatever the Government's attitude may be to my noble friend's amendments, it seems to me that a provision along those lines might well be worth further consideration at a later stage during the Bill's passage.
§ Lord Monson
Of course, we must heed complainants' rights, but we must also pay attention to defendants' rights. Surely, Amendment No. 112, even as qualified by Amendment No. 123, loads the dice excessively against the defendant. After all, there have always been individuals who are mentally unbalanced in some way, who have a long history of making serious false allegations against totally innocent strangers or even totally innocent acquaintances. I submit that if Amendment No. 112 is agreed to, those innocent individuals may be put at risk.
§ Lord Williams of Mostyn
I sympathise with the intention behind this amendment as described by the noble Lords, Lord Dholakia and Lord Lester. The complainants are lot on trial and their lives should not be combed through to find some detail that the jury might take into account unless it is strictly relevant.
Evidence that a complainant has or has had a mental disorder can already be excluded by the court if the court thinks it is irrelevant to the issues at trial. If the mental condition has been short-lived or adequately controlled and there is no medical reason to believe that it was relevant, then prosecutors should not be reluctant to let the court decide on admissibility.
The amendments go further. They would have the effect of making mental disorder irrelevant in law to the defence of consent, unless specific evidence of disorder at the time of the alleged offence could be produced.
I sympathise with the purpose of the noble Lord, Lord Dholakia, but mental illness is not always irrelevant and a witness's mental state can be relevant to whether he or she imagined that an offence took place or whether he or she is deliberately making a false allegation. In certain cases, the state of mind thereafter—in other words after the offence—and at time of trial may well he relevant.
The clause would need to be widened to cover abortions and so on, which is the specific point raised. I have a good deal of sympathy with the protection that ought to be given. I think I can be helpful to the noble Lord. One of the real complaints at the moment is that some defence lawyers embark on "fishing expeditions"—and this is a mischief of which I have knowledge—to obtain documents from third parties such as doctors or hospitals. That is becoming a considerable concern.
The comfort I think I can give to the noble Lord is that Section 66 of the Criminal Procedure and Investigations Act 1996 introduced new provisions for issuing witness summonses to attend the Crown Court. That is intended to help deal with the problem. Section 66 will be brought into force this spring. It means that there will have to be a witness summons issued on application to the court. The application would have to be justified, specific and timely. At that stage, 42 the third party—perhaps the doctor or the other professional adviser or the hospital—could contest the application, if necessary, should the court think it appropriate, on the grounds that the evidence was irrelevant.
That ought to be some comfort to the noble Lord because most of those lines of cross-examination are developed, as the noble Lord, Lord Lester, indicated, by having sight of the records and then developing the line of cross-examination. If you have to justify your reason for having the records brought to court, the provision ought to be a useful constraint on the abuse of some of those lines of questioning. I hope that that is helpful.
§ Amendment, by leave, withdrawn.
§ 5.15 p.m.
§ Lord Ackner moved Amendment No. 113:
§ Page 28, leave out line 24.
The noble and learned Lord said: This amendment, together with Amendment No. 116, is directed towards maintaining the status quo in relation to restrictions on evidence at trials for rape. I remind the Committee of the status quo on the subject. The Heilbron Committee produced recommendations for legislation which were accepted. They are to be found in Section 2 of the Sexual Offences (Amendment) Act 1976 which states in subsection (1):
If at a trial any person is for the time being charged with a cape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be 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 the defendant.
(2) 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 a defendant: and on such an application the judge shall give leave if and only if he is satisfied: hat it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked".
I respectfully disagreed with the proposition put forward by the Minister during the Second Reading of the Bill which is now before us. At column 1238 of Hansard for 15th December 1998 he said
I know that some of your Lordships, and some outside this House, have misgivings about some aspects of the provisions"—
that is, the provisions we are discussing.
The Bill does not exclude all evidence of previous sexual behaviour, only irrelevant evidence. Taking rape as an obvious example, a complainant's previous sexual behaviour, whether one of wild abandon, tedium or total abstinence, is simply not relevant to the question of whether there was consent on the occasion in point; nor should it render a complainant less worthy of belie or less deserving of the protection of the law".
With great respect, that just is not right. Of course it is relevant. Credibility where the issue is who is to be believed—the complainant or the defendant—goes to a serious aspect of the whole case. That was made clear by my noble and learned friend the Lord Chief Justice in the same debate on 15th December 1998 at column 1272 of Hansard. He said:
The simple truth is that on an issue of whether a complainant consented to sexual relations with the defendant, the fact that the complainant has behaved promiscuously on other occasions outside the window of 24 hours before and after the commission of the offence may well—I emphasise 'may well'—"be relevant. So, to recognise is not to open the door to abusive, insulting, irrelevant cross-questioning, which, in any event, is likely to repel any decent modern jury, but to recognise what many sensible decent jurors would consider a question that may be relevant in some cases".
I turn to one of the leading cases on the subject, R. v. Brown in the Court of Appeal. The Court of Appeal made it clear that if the questioning related to conduct which was merely relevant to credibility, then it would probably be disallowed. The crux of the matter is to be found on page 101 of the judgment of the Court of Appeal
The real inquiry is whether on the facts of the particular case the complainant's attitude to sexual relations could be material upon which in these days a jury could reasonably rely to conclude that the complainant may indeed have consented to the sexual intercourse on the material occasion, despite her evidence to the contrary. It is in every case a question of degree".
That is why the Act reads in the terms to which I have drawn the Committee's attention.
§ It is my respectful submission that the law as set out in the statute is wholly adequate and does not need to be played around with. For the legislature to say that something that is potentially relevant, and therefore should be considered by a jury, is not to be put before the jury is a terribly serious step. If it is not put before the jury it may well be that had the jury had the material it might have reached a state of doubt which obliged it to acquit. What is happening here is that the discretion is to be removed from the court and in its place one has the absolute words of Clause 40. It is always a dangerous matter for the legislature to remove judicial discretion. We had experience of it in the Criminal Justice Act 1991 which placed judges in a straightjacket when sentencing, with the result that not long after that Act came into force amending legislation had to be introduced. Accordingly, I move that these clauses be dealt with in the manner that I have suggested.
§ The Deputy Chairman of Committees (Lord Ampthill)
I remind the Committee that if Amendment No. 113 is agreed to I shall be unable to call Amendment No. 114.
§ Baroness Mallalieu
Amendment No. 125 standing in my name and that of the noble and learned Lord the Lord Chief Justice is grouped with these amendments. Perhaps I may speak to that amendment at this stage. Its purpose is simply to give to English and Welsh judges the same limited discretion as their Scottish counterparts were given when this aspect of the law was reviewed in Scotland in the Criminal Procedure (Scotland) Act 1995; namely, if the court considers that the evidence or question is necessary in the interests of justice to ensure a fair trial it may give leave. I hope that the Minister will be able to reassure the Committee that the judiciary here enjoys no lesser parliamentary confidence in exercising a very limited and carefully prescribed discretion than its Scottish counterpart.
44 The starting point for consideration of Clause 40, as the noble and learned Lord, Lord Ackner, said, is whether it is necessary to change the law to restrict questions about a complainant's sexual history over and above the very considerable constraints that now exist. One's answer to that question depends on one's particular standpoint. Those who deal with individuals who allege that they are the victims of sexual offences see the matter from one clear and, in my view, extreme viewpoint. Women Against Rape for example believes that evidence of a woman's sexual history with a man other than the defendant should never be allowed with no exceptions. If one asks those who have given evidence as complainants in a sex case it is scarcely surprising if they, too, say that the questioning goes too far. When young I gave evidence as a complainant in court in relation to a sexual offence, which fortunately was not a serious one. I was cross-examined. I readily appreciate how vulnerable such witnesses feel and that virtually any question that challenges the evidence that is given will appear to be intrusive and excessive.
But I hope that as a result of nearly 30 years of both prosecuting and defending in these cases in the courts I can now view these matters from both sides. The reality is that not all complainants tell the truth. Questions that are merely designed to embarrass, humiliate or blacken the complainant in the eyes of a jury must never be permitted to be asked, but relevant questions that are necessary to ensure justice is done must continue to be permitted. It must be right that no one's best interests are served by wrong convictions, least of all those who are genuine victims, because when miscarriages of justice come to light, as they sometimes do, juries thereafter are even more reluctant to convict in cases where a conviction may well be more than justified.
In practice today in order to ask such questions of a witness in a sexual case it is necessary in the absence of the jury and the complainant for the judge to be convinced that the questions one proposes to ask, which one must outline, are relevant and necessary before the judge gives consent. In doing so the judge will clearly define the limits of his permission. In my personal experience such applications are not made nor is permission given lightly. Although this is a field of work in which I am engaged week in and week out I have no personal experience since the passing of the 1976 Act to which the noble and learned Lord referred of the law either not being complied with by a judge or being abused by counsel after leave has been given. I did have such experience before that date.
I have read and re-read many times Clause 40. I am still puzzled as to the extent of changes in the law that it makes. It claims to introduce a new restriction on evidence or questions about a complainant's sexual history. It does so against the background of the present law that the noble and learned Lord summarised a moment or two ago. I believe that at an earlier stage the Minister took the view that there was already adequate discretion given to the court under Clause 40 as presently drafted.
Perhaps I may consider the discretion that the clause gives as it stands. I believe that there are four separate headings. First, if the issue is not consent and to refuse 45 permission to ask the question or give the evidence may make the verdict unsafe, then that evidence or question is permissible, subject to the judge ruling that it is relevant and necessary. Secondly, if the issue is whether the accused believed that the complainant consented under Clause 41 the evidence is permissible, subject again to the judge being satisfied. Thirdly, if the issue is consent and the sexual behaviour about which the questions are to be asked happened within 24 hours either before or after the event, and to refuse to allow those questions may render the verdict unsafe, the evidence is permissible. Fourthly, if the issue is consent, and the evidence to be adduced relates to evidence called by the prosecution about the complainant's sexual behaviour, and in the opinion of the court goes no further than rebutting or explaining that evidence on behalf of the accused, it is permissible.
When the Minister and his officials from the Home Office kindly met those noble Lords who were interested in the Bill before Second Reading to explain the Bill, a number of examples were put to him by noble Lords of facts which gave rise to concern. In each case the Minister reassured us by saying that on those facts one or other of those discretions would apply, and such questioning could be permitted. When the Minister deals with the amendments, will he give us an example of a question which is currently permitted under the present law? I refer, for example. to relevant evidence going to the issue of consent which, in the opinion of the judge, it would be unfair not to allow to be asked and which would be excluded by the proposed legislation. If there is no such example, what does this clause achieve? If there are examples of evidence which is relevant to the issue of consent, and which it would be unfair to the defence to exclude and which may now be excluded under this clause, h DW can it be in the interests of justice for the clause to stand unamended and not contain some further discretion?
I ask the Minister to consider a hypothetical example and to advise me and the Committee whether at present Clause 40 as drafted would exclude questioning and evidence about these matters. A prosecution is mounted against the defendant, the allegation being that he has met the complainant at a party, followed her to her home, climbed in through an upstairs balcony and raped her. The defendant says that at the party where he agrees they met, she invited him to re-enact the balcony scene from Romeo and Juliet. He says that he indeed followed her home, climbed in and consensual sex took place between them. Subsequently, but prior to the trial, evidence comes into the possession of the defence that the week before, and again the week after but outside the 24-hour period. the same lady met another young man at a party, on each occasion inviting him back to her house in identical circumstances, where consensual sex has taken place with each young man on each occasion. The evidence goes to the issue of consent, not to whether the defendant thought that she consented because he was wholly unaware of either of those incidents at the time of the act in relation to which he is charged.
46 The evidence does not appear to me to rebut the evidence of the Crown that the complainant did not consent on the night in question or explain that evidence. Yet that evidence might be thought, I venture to suggest by most right thinking people, to put a very different light on the events which would be highly relevant to the jury's verdict. To reach the right verdict, the jury might well be assisted by having the full picture.
If I am wrong in my interpretation of Clause 40, and such evidence would be admissible subject to the judge being satisfied under this clause, I should be grateful if that were so and more than happy to be corrected. But if I am right, surely the judge should have a wider discretion than Clause 40 gives at present.
Further, the difficulty that we in this Chamber and those in another place have when considering legislation of this kind is that we cannot anticipate all possible factual situations which may arise. Hard cases make bad law. That is a cliché, but it is so often the truth. Recently I had experience in the courts of seeing legislation passed by this House less than two years ago operating in a way which I believe we never contemplated, and as a result obliging the court to impose a mandatory life sentence in circumstances which I suspect we never considered would give rise to such a sentence. After reading it many times, I am not sure whether Clause 40 is draconian or meaningless, but I suspect it to be the former.
Amendment No. 12:5 is a modest proposal. I ask the Minister to give it careful and favourable consideration. If he cannot do so, I should be grateful to know why he considers that a distinction should be made between Scotland and the jurisdiction of England and Wales.
§ 5.30 p.m.
§ Lord Lester of Herne Hill
My Lords, I shall speak in relation to the group of amendments as a whole, some of which are, in the words of the noble and learned Lord., Lord Ackner, designed to preserve the status quo.
I begin by saying something about the mischief with which the clause is designed to deal. There is a myth, which can operate in courtrooms during rape trials. It is a myth which results in questions posed to a victim of rape which essentially make that victim feel that she is the one on trial. It is a myth which results in a great deal of injustice and inequality, with great respect to the: noble Lords and noble and learned Lords who have spoken.
The myth, based upon a stereotyped prejudice, is that unchaste women lie about sex. The consequence of that myth in some rape trials is a slew of improper, irrelevant and inappropriate questions posed by the defence about a rape victim's past sexual practices, past sexual partners and past medical history, even asking whether the woman has ever had an abortion. I ask myself: what possible relevance can such questions have other than to play on prejudices and myths? It is the same as allowing evidence of an accused's past convictions to go before a jury, and yet such evidence is barred because of its highly prejudicial nature.
47 Because a victim's past sexual behaviour normally has little probative value to the issue of consent, I support the Government's proposals in Chapter III. The objective behind the proposals is not new. As the law stands now, as the noble and learned Lord, Lord Ackner, explained, we have Section 2 of the Sexual Offences (Amendment) Act 1976 which codifies the recommendation by the Heilbron Committee that the admission of sexual history evidence in rape trials should be the exception rather than the rule. But Section 2 relies on judges to decide whether and when such evidence should be excluded. As Professor Temkin of Sussex University has pointed out in her careful study of Section 2 (published in the 1993 Criminal Law Review at pages 3 to 20), which I have carefully read, the direction given to trial judges by the Court of Appeal has been to admit rather than exclude such evidence in particular on the issue of consent rather on the lines of the thinking in the speech of the noble and learned Lord, Lord Ackner. But consent by its very nature is to a person and not a circumstance. As Dame Rose Heilbron pointed out as long ago as 1975, evidence of a woman's sexual experiences with partners of her own choice is not indicative of a general willingness to consent.
Pace the noble and learned Lord, Lord Ackner—with great respect and friendship Clause 40 does not remove judicial discretion. It builds on Section 2. Its provisions seek to structure, guide and narrow the discretion exercised by a judge in deciding when a victim may be questioned about her sexual behaviour. There is no absolute bar on such evidence of the kind advocated by Women Against Rape. I wholly share the view of the noble Baroness, Lady Mallalieu, that that kind of extreme position would be contrary to the interests of justice and to other fair trials. But the structure proposed in Clause 40 provides for a limited number of grounds of admissibility, thereby preventing the prejudice which occurs when such evidence is admitted for inappropriate reasons.
There will, essentially, be three grounds. The first, in Clause 40(3)(a), is if the evidence relates to any issue which has to be proved in the case other than an issue as to whether the complainant consented. The second, in Clause 40(3)(b), is if the evidence relates to the issue of consent and the evidence relates to behaviour within 24 hours of the offence. I am not keen on the 24-hour arbitrary limit, but that is a side issue in relation to this group of amendments. The third, in Clause 40(5), is if the evidence is intended to dispute evidence that the prosecution has introduced about the complainant's sexual behaviour. There is also an additional requirement imposed on the court to consider whether refusing admissibility would render a jury's or magistrate's conclusion on a relevant issue unsafe. Clause 40 creates no new additional bar to the admissibility of evidence of the complainant's sexual history if the evidence relates to the defendant's belief that she had consented. The limited discretion operates in relation to the issue of consent itself, but not the issue of the defendant's belief.
48 The provisions are well structured, carefully balanced and fair to both the accused and the witness. Those opposed to these provisions appear to argue that they would offend an accused's rights to a fair trial. We have not been given practical examples of exactly how the unfairness is said to result or likely to result from this clause. I leave it to the Minister to deal with the extreme hypothetical and curious examples put by the noble Baroness, Lady Mallalieu, about the Romeo and Juliet balcony scene.
The Supreme Courts in both Canada and the United States have confirmed that so-called "rape-shield provisions" do not automatically offend the right to a fair trial. And there are rape-shield provisions in Australia and New Zealand, all recognising the need to balance an accused's right to a fair trial with a victim's right to fairness, dignity and respect.
The Canadian provisions are a good example of balance, drafted with an input from the Supreme Court, women's groups and civil liberties groups, and eventually passing through the Canadian Parliament with all-party consent. To date, those provisions have survived constitutional challenge, and I am pleased to note that there is some similarity in approach between the Canadian provisions, drafted with an input from the Canadian Supreme Court, and those proposed in Clause 40. I believe that we should support these provisions on the grounds of fairness, justice and equal treatment for women in our courtrooms.
Opponents argue that they are unnecessary because the trial judge will ensure that only necessary and relevant cross-examination takes place. I have no experience as a criminal advocate nor of trying rape cases because I was only a humble Assistant Recorder and Recorder for a decade. However, I can say that until some five years ago I used to participate regularly at interviews with officials from the Lord Chancellor's Department of candidates for judicial office as Assistant Recorders. What we found again and again was that relatively senior members of the criminal Bar had a loose approach to what was and was not permissible in this area. That was despite judicial guidance, and it convinced me that legislative principles and rules are appropriate and necessary.
I do not blame those practitioners for that loose approach. I say with great respect and deference to the noble and learned Lord the Lord Chief Justice, who is in his place and will no doubt speak about these issues, that if one looks at the case law of the Court of Appeal Criminal Division one sees that it is loose in its guidance and does not treat the matter with the strictness that is required not only in the interests of justice but also in the wider interests of protecting witnesses in the way I have described. For those reasons, I oppose the amendment tabled by the noble and leaned Lord, Lord Ackner, and any other amendments which are designed to preserve the status quo.
§ 5.45 p.m.
§ Lord Campbell of Alloway
Perhaps I may put another point of view. I have no civil liberties brief and, 49 unlike the noble Lord, Lord Lester, in my early days I had considerable experience of rape cases on the western circuit. I shall be brief.
Let us start at the beginning. The purpose of the clause is to narrow judicial discretion. There can be no justification whatever for seeking to do that unless the extant law is either unsatisfactory or is not honoured by observance in practice. I speak with deference to the noble and learned Lord the Lord Chief Justice. Subject to what he may say, the extant law is, in my opinion, satisfactory and it is honoured in practice.
One comes to the pivotal point, which is relevancy. Apparently, the noble Lords, Lord Williams of Mostyn and Lord Lester of Herne Hill, and all the civil liberties paraphernalia, take the view that the attitude to sexual relationships has no relevance whatever and therefore should not be before the jury. I take the totally opposite view, which has been expressed by the noble and learned Lord, Lord Ackner, and the noble Baroness, Lady Mallalieu, and wholly accords with my experience, although it was some years ago and before the 1976 Act.
It is a question of degree. There is a strong onus on anyone who wishes to change the existing law because, according to the views that have been expressed by those who have considerable experience in this sphere since the 1976 Act, these matters are relevant to the consideration of the jury. What one is doing is to deprive the jury of relevant considerations and I believe that to be wholly unacceptable.
§ Lord Thomas of Gresford
My noble friend Lord Lester of Herne Hill freely admits that he has no experience of rape cases. With respect to him, he operates on the higher plane of human rights. When he referred to the tape-shield provisions which have developed in other jurisdictions under their Bills or Charters of Rights, he overlooked the fact that the expression he used—the balancing of justice to the accused and fairness to and protection of the complainant—was used by the noble and learned Lord, Lord Lane, a former Lord Chief Justice, in the case of Fenlon in 1980 when he said in terms that in deciding whether to allow cross-examination under Section 2(2) of the Act,the court must balance justice to the accused and fairness to and protection of the complainant".That balancing act, to be performed by the judge, is part of our criminal law, whether or not there is a Bill or Charter of Rights in existence.
My noble friend referred also to the guidance given by the Court of Appeal. That guidance has been on the interpretation of Section 2(2) of the Sexual Offences (Amendment) Act: 1976 which, as the noble and learned Lord, Lord Ackner. pointed out, reads as followsThe 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 a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked".50 That provision was considered in the case of Lawrence which was reported in the  Criminal Law Report 492, a decision of Mr. Justice May who saidThe important part of the statute which I think needs construction are the words 'if and only if he [the judge] is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked'. And, in my judgment, before a judge is satisfied or may be said to be satisfied that to refuse to allow a particular question or a series of questions in cross-examination would he unfair to a defendant he must take the view that it is more likely than not that the particular question or line of cross-examination, allowed, might reasonably lead the j an', properly directed in the summing up, to take a different view of the complainant's evidence from that which they might take if the question or series of questions was or were not allowed".That approach was approved by the Court of Appeal in the case of Viola in which the noble and learned Lord, Lord Lane, saidThe first question whim the judge must ask himself is whether the questions proposed are relevant according to the ordinary common-law rules of evidence, and relevant to the case as it is being put. If they are not so relevant, that is the end of the matter … If the questions are relevant, whether they should be allowed or not depends on the terms of s.2, which limits the admissibility of relevant evidence … It is for the judge to apply the dictum of May J in Lawrence … to the particular facts of the case".The noble and learned Lord, Lord Lane, went on to sayThe 1976 Act was aimed primarily at protecting complainants from cross-examination as to credit, from questions which went merely to credit and no more. The result is that, generally speaking, if the proposed questions merely seek to establish that the complainant has had sexual experience with other men to whom she was not married, so as to suggest for that reason she ought not to be believed under oath, the judge will exclude the evidence. On the other hand, if the questions are relevant to an issue in the trial in the light of the way the case is being defended, for instance relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted, because to exclude such a relevant question will usually mean that the jury are being prevented from hearing something which, if they did hear it, might cause them to change their minds about the evidence given by the complainant".
§ Lord Lester of Herne Hill
Does my noble friend agree or disagree with the conclusion reached by Professor Temkin in her study of all those cases in the Criminal Law Review, to which I have referred, where she concludes that the willingness of the Court of Appeal to see a wide range of evidence as of relevance to consent means that trial judges who refuse to allow in sexual history evidence do so at some considerable risk of a quashed conviction on appeal?
§ Lord Thomas of Gresford
If the Court of Appeal quashes the conviction, it seems to me that justice has been done. My experience is—as is that of the noble Baroness, Lady Mallalieu—that it is extremely difficult for such questions to be put. Before they can be put, the Court of Appeal also gives this guidance thatNo application for leave to cross-examine … can properly be made unless defence counsel has instructions which provide reasonable grounds for making the assertion he wishes to make".Therefore, the first safeguard is that counsel must have instructions with reasonable grounds.
The second safeguard is in the rules of the Bar which state that counsel, 51must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify, insult or annoy either a witness or some other person",and further that,It is a responsibility of a barrister, especially when the witness is nervous, vulnerable and apparently the victim of criminal or similar conduct, to ensure that those facing unfamiliar procedures are put as much at ease as possible".Therefore, upon defending counsel, there are professional requirements which he must obey as well as requirements and guidance laid down by the Court of Appeal.
I turn to the provisions set out in Clause 40. My first comment—and I shall make a number of separate comments—is in relation to subsection (2)(b),that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case".The test of whether the conviction or conclusion is unsafe is that which applies to the Court of Appeal. In my view, it is wrong to introduce the concept of whether something is rendered unsafe into the discretion of the trial judge. The phrase that has been used in the existing legislation and expanded upon by the Court of Appeal that the judge must consider whether there is unfairness to the accused is a far better test.
My second comment is in relation to subsection (3)(a) and (b). It would seem that it is possible in the discretion of the judge for questions to be asked about the sexual history of the complainant if the issue is not an issue of consent; that is, if the issue is a belief in consent. It seems to me that there is a contradiction here because in almost every case where the defence is one of consent, there will be an additional defence that, even if the complainant did not consent, the defendant reasonably believed that she did consent. The two defences almost invariably run together. Indeed, I cannot imagine a situation where they could not run together.
In that eventuality, it would seem that under subsection (3)(a), the previous sexual history of the complainant, provided that it is relevant, can, with the leave of the judge, be explored in that particular case. There are other criticisms which I have to make of this particular clause, but I have already gone on for far too long and I shall leave it to others.
§ Lord Desai
I am not a lawyer. I am the first non-lawyer to speak on this question. Having heard many lawyers, I am somewhat confused as to what is the issue, so I shall start by stating what I believe should be the case.
As far as I understand it, the status quo, as it is, is not satisfactory but the clause makes the case worse rather than better. That is my understanding. I believe that in a case of rape, the sexual history of the woman should be totally irrelevant and should not be asked about. That is the first principle that I want to state.
Even the 24-hour rule should be admissible only if the other party is the defendant but not otherwise. So in relation to the case cited by my noble friend, even if the lady in question practised the balcony scene every night or every four hours, it should not concern the court.
52 I read with great admiration a lot of literature which feminists write. I know that there is much dissatisfaction about the rape issue among women. There is dissatisfaction with the legislature that rape is somehow considered to be like other offences, whereas many believe—perhaps in an extreme way, but genuinely—that it is more akin to murder than not. And a murdered person's previous history is not relevant as to whether or not he was murdered.
I know that I am being extreme, but that is my role in life. I feel that at present I am inclined to side with the noble and learned Lord, Lord Ackner. He at least wants to preserve the status quo. In as much as Clause 40 does not go in the opposite direction of removing such discretion as the judge has, I have to live with that. But Clause 40 goes the wrong way. It asks the judge to admit evidence which should not be admitted and therefore I shall be inclined to support the noble and learned Lord, Lord Ackner.
§ 6 p.m.
§ Baroness Thomas of Walliswood
The noble Lord, Lord Desai, has beaten me to the drum as the first non-lawyer to speak. But I am only the second woman to speak and want to say straight away that I am not a member of any extreme feminist group, though I am a member of several respectable ones. And I do not take everything that is said by some of them as the word that I have to follow.
I listened to the noble and learned Lord, Lord Ackner, with all the deference and interest with which I always listen to him. To begin with I felt that he made a lot of sense. But as an ordinary lay person, as he went on—particularly when he was supported by the noble Lord, Lord Campbell of Alloway—I gained the clear impression that the issue of consent could be adduced to some extent by introducing evidence of a complainant's past history. If that is so, one could never support a prostitute who claimed to have been raped, yet I am sure that prostitutes can be raped. We could never convict anybody who raped a promiscuous woman because that evidence would be against her character, yet I am sure that there are women who have a number of sexual partners and who can be raped. Finally, it would be extremely difficult to convict a husband of raping his wife, yet husbands can and do rape their wives.
For those reasons, unless I hear something dramatic and convincing from the noble and learned Lord the Lord Chief Justice, if he intends to speak, I support the line taken by my noble friend Lord Lester of Herne Hill.
§ Baroness Ludford
I may as well venture where my noble friend Lady Thomas does not dare to tread. As a qualified barrister but one who has never practised I do not profess to possess the knowledge of some of my noble friends.
I listened with interest to the debate between my noble friends Lord Thomas of Gresford and Lord Lester of Herne Hill. I start from the point of view that the status quo is not satisfactory. I was concerned by something said by my noble friend Lord Thomas. He 53 said that the existing test is that the judge has to decide whether it would be unfair to the defendant not to allow the evidence of previous sexual history. He quoted from the case of Lawrence in 1977 which had been interpreted as meaning that if the evidence was admitted it would lead the jury to take a different view.
That seems to me to meet the analogy drawn by my noble friend Lord Lester of Herne Hill, where the point of excluding the previous convictions of a defendant is precisely to avoid a situation where the jury is likely to be prejudiced and draw the semi-automatic conclusion that, because the defendant committed every other burglary in the street, he must have committed this one.
§ Lord Thomas of Gresford
I am sure my noble friend will recall that witnesses can be cross-examined as to their convictions in any case, and a complainant is a witness.
§ Baroness Ludford
Notwithstanding that, my point stands. I believe that some tightening up of the existing status quo is necessary. Perhaps I may make a further small point. The position of Women Against Rape was alluded to earlier by the noble Baroness, Lady Mallalieu. I understand that that organisation takes the view that evidence of previous sexual history with anyone other than the defendant should not be admitted. My noble friend Lord Lester also referred to that and said that it goes too far. I can appreciate that. However, I shall listen with interest Ca the Minister's reply.
It seems to me that greater care will need to be taken with evidence of previous sexual history with partners other than the defendant, particularly if the issue is one of consent. It is surely in that area that the problem lies; that is, the risk that the evidence that the complainant is promiscuous may somehow lead to the conclusion that she must have consented also on that occasion. Her previous history with the accused is surely more relevant—or that may be argued—than her previous history with people other than the accused. I shall listen with interest to see how the debate on this point develops.
§ Lord Warner
I had not intended to speak, but having listened to the debate on Clause 40 one cannot help but think that this sounds more like a debate in a legal club as to whether or not it should have its discretion fettered arid not whether it is more reasonable to balance better the rights of defendants and complainants.
Members of this Committee from time to time will have encountered the Government's interest in evidence-based practice. I have heard no one this afternoon respond to the points raised by the noble Lord, Lord Lester, in relation to research evidence on the extent to which people are putting into practice the Court of Appeal's guidance. On the strongly argued research evidence I feel that we should review the present situation and not adhere to the status quo.
Most lay people observing this territory have a strong perception that it is often open season in rape cases for lawyers to blacken the reputation of women in the hope that that will advance the cause of their client's defence. 54 I share the concern of tie noble Lord, Lord Lester, that we perpetuate that myth of the unchaste woman as evidence that consent was given in those cases.
I am sure that Members of the Committee who practise law consider in the cases with which they deal that the system works extremely well. But that is not the perception of the outside world. Clause 40 does not do anything to seriously reduce the rights of defendants in these cases; it simply narrows the discretion of the court and rebalances matters between the defendant and the complainant.
During the course of the debate I heard a number of what seemed to me to be slightly offside remarks in relation to civil liberties and human rights. But it is worth bearing in mind that we have now passed legislation in this country whereby we require Ministers to sign on the face of the Bill a certificate to indicate that the legislation conforms with the European Convention on Human Rights. I suggest that we stick to Clause 40 as it stands rather than trying to revert to the status quo.
§ Lord Milverton
I shall wait to hear what the Minister says on this difficult matter. I think that perhaps there is more readiness than not to accept what some women maintain; namely, that they have been raped. Often one reads of cases in the press in which it appears that women are not always taken seriously. It is suggested sometimes that perhaps they have encouraged the offence. However, I believe that there are occasions when a woman "has been done", to put it crudely, against her will. I like to believe that a great many women are decent and do not just say, "Here I am." At the same time, I think that perhaps we men are partly responsible. That goes back not just to Christian beliefs, but to other beliefs which uphold the dignity of a human body and of life. I shall be interested therefore to hear what the Minister says.
Perhaps some women may behave in the opposite way, equivalent to a man. However, I do not believe that the status quo is appropriate. Somehow, justice is needed for the many women who are clearly "done" against their will, but justice also needs to be done for men who may have been forced against their will. However, on the whole, I think that we men have a lot to answer for in the way in which some women are treated as regards rape.
§ 6.15 p.m.
§ Lord Bingham of Cornhill
I too had not intended to speak but various Members of the Committee have tempted me to do so. Perhaps I make take a specific example which may be stigmatised as far fetched, but I think it makes the point
Let us suppose that a defendant is charged with raping a complainant at 2 a.m. on New Year's Day. Let us suppose further that he is in a position to instruct counsel to ask these questions of the complainant: "Did you voluntarily have sexual relations with a different man, A, on Boxing Day? Did you voluntarily have sexual relations with a different man, B, on 27th December? Did you voluntarily have sexual 55 relations with a third man, C, on 28th December? Did you voluntarily have sexual relations with another man, D, on 29th December?"
As I understand the Bill, if the defendant's defence is one of consent—not reasonable belief, but consent—none of those questions could be asked, even if it was known that the answer to all of them would be "Yes". The reason for not permitting those questions is not that they are irrelevant. I suggest that no rational person would think that those questions were irrelevant. I also suggest that a reasonable juror could think that they were probative. By "probative" I do not mean "conclusive". They do not mean that the complaint is false; they just mean that it is something that a reasonable person would want to take into account in considering the truth of the complaint made and the defence to it. If such questions were not capable of being regarded as relevant and probative, we would not see the 24-hour window before and after the alleged offence for which the Bill provides.
Therefore, these are relevant questions, potentially; they are probative questions, potentially, but, if I understand the Bill correctly, the judge is not to be given any discretion to allow them to be asked unless the issue is not consent, but reasonable belief.
I suggest that that is not good sense. That is not a recipe for the good administration of justice. Although the Minister took issue when I said this the other evening, I suggest that we must at all costs avoid miscarriages of justice in this area as in every other. I am sure that Members of the Committee do not need reminding that the penalty for conviction of rape is a very heavy one. The courts have been responsive to the outrage that all decent segments of society feel at the commission of what is rightly described as an act of violence as well as of gross sexual violation. So let us not suppose that a count of rape is one that leads to no severe penalty; it leads to a very severe penalty indeed. That means that the need to ensure that somebody is truly guilty before he is convicted is ever stronger.
Some noble Lords have asked whether the law is now observed. The truth of the matter is that none of us really knows. Some of us have impressions, perhaps gained from the newspapers, one way; others have views, derived from research, the other way. I can contribute one piece of information for the Committee's consideration. When judges who try these cases attend, as they regularly do, the circuit level seminars on the conduct of these cases run by the Judicial Studies Board, the question that is always asked is whether the discretion is too lightly exercised in favour of the defence. The suggestion that it is greeted by the judges with a sense of outrage and disbelief. That confirms, I venture to suggest, what the noble Baroness, Lady Mallalieu, with her enormous day-to-day experience, told the Committee.
Perhaps I may draw attention to the extremely guarded terms in which our amendment, Amendment No. 125, is framed. It states that such questions and evidence are to be allowed,if and to the extent that the court considers such evidence or question to be necessary".56 It does not say "desirable" but "necessary"—the strongest word which could be used—and for what purpose,in the interests of justicewhich must be paramount,to ensure a fair trial of the accused".I hope that the Minister will think carefully about the matter. I can see no good reason why any court should be deprived of a discretion as limited and closely circumscribed as that.
§ Lord Cope of Berkeley
Most of the amendments in this group, like the one outlined by the noble and learned Lord the Lord Chief Justice, provide, in different formulations, a sort of override in the interests of justice. That, after all, is what the court is for. The underlying question before us is whether we, in Parliament, can, in framing legislation of this sort, judge better what is in the interests of justice than can the court at the time.
I am another non-lawyer contributing to this discussion. I do not for one moment under-estimate the traumatic effect of rape cases on the victims. The Minister did hint slightly that I might have done so on an earlier occasion. He also poked fun at Question Time recently at those of us who previously served in another place. It is part of the noble Lord's charm that he cannot resist a dig in the ribs when the opportunity is available. In over 20 years as a Member of another place one learns a great deal about lawyers and justice. It is a very regular feature of a Member of Parliament's surgery on Saturday morning or Friday evening to hear people complaining about their treatment in the courts and the outcome of legal proceedings. Over the years I have had to do my best to comfort, as best one can, distraught women and their relatives who have been on the receiving end, as they saw it, of attacks by lawyers in such cases. Such experiences make Members of another place—and I include myself during the time I was there—believe that something must be done.
But that is not always a good guide to action. I say to the noble Lord, Lord Warner, that we should not legislate on a matter of this kind because of public perception. We should legislate in the interests of justice, which can be a different matter. I also know of a case in my former constituency where I am as convinced as I can be that a young man was wrongly convicted of rape with absolutely appalling consequences for him and his future life. So I take very seriously what the noble and learned Lord the Lord Chief Justice said about miscarriages of justice. The court's job is to get at the truth, which is obviously extremely difficult.
That brings me back to the basic question as to whether we in Parliament can better judge than the court at the time what is in the interests of justice. As expected, there has been discussion this evening about consent and belief in consent. There is a distinction in the Bill in the way in which that evidence may be treated. It is a question of whether it goes to consent by the women or belief in consent by the man in a case. In its consultative paper of 1995 the Law Commission proposed changes in the law as regards belief in consent 57 being required. I see that it is the opinion of the Criminal Bar Association mat should the Law Commission's proposals become law it will significantly reduce the problem in the operation of subsection (2).
We understand that the Government are considering the views of the Law Commission on this matter and are likely to come forward before long with proposals. That affects very much the questions before us today. If the law on belief and consent in particular is to be altered, then maybe the proposed changes today should reflect that. It may be that they are not as necessary as they seem.
Another thought arising on the matter of consent and belief in consent is that sexual history is definitely relevant to a belief in consent. The defendant's knowledge of the complainant's sexual history is definitely relevant in many cases to his belief in consent and that will still be admissible. So even if we pass the Bill exactly as it stands there will still be a great deal of discussion in court about the sexual history of the complainant. I believe it was the noble Lord, Lord Thomas of Gresford, who said that the two issues of consent and belief in consent are deeply interwoven. In practically every case I believe that they are crucial to it. There are considerable difficulties in proceeding at this time with this amendment.
Amendment No. 117 goes particularly to the question of the 24-hour rule. It is an exceptionally crude device. One can envisage it leading to all kinds of awkward arguments about the exact time of day—or more likely the night—in which previous events took place. It is a question of whether something that happened the previous night is relevant or not to the woman's consent or the man's belief in that consent. That would only be admissible if the 24-hour rule were to apply. If the alleged rape was al 10 p.m. then something which the complainant did at 11 p.m. the previous evening would be admissible in court. But what she did at 9 p.m. would not be admissible in any circumstances. That does not appear to be a supportable proposition. No doubt the Minister will say that there is no magic about 24 hours and that one has to pick a time. I understand that. Quite obviously 12, 24 or 36 hours, or some other period of time, could have been chosen.
It is not the particular period of time that I complain of so much as the arbitrary nature of dropping on any fixed number of hours, whether 12, 24 or 36 hours. It seems to me that it chows that any fixed time test of this kind will not be satisfactory and will lead to all kinds of awkward arguments about the precise timing of other events relative to the time of the alleged offence.
These are difficult matters. Many of the legal profession, the judiciary and the public feel strongly about them. However, ultimately we have to try to make a judgment as to whether the courts should decide what evidence it is proper to bring out in the interests of justice rather than bowing to the clamour of those who have misunderstood proceedings as they take place at the moment. Clearly, complainants should be defended. But defendants have the right to have their interests override those of complainants as it is their freedom and they who are on trial. Therefore there remain great difficulties as regards the proposals in the clause.
§ 6.30 p.m.
§ Lord Williams of Mostyn
The noble Lord, Lord Cope of Berkeley, identifies the interesting question of whether the courts decide or, as we contend, Parliament should set a firmer structure. At the end of the day many of the contributions of Members of the Committee come down to that. When Parliament reaches a conclusion on that, I do not believe that it will be bowing to clamour. It will be paying attention to what has been said by many people over a number of years, not least having regard to the research to which the noble Lord, Lord Lester of Herne Hill. alluded.
I start from a pretty simple proposition. A woman's body is her own. It is not a plaything. A women's consent is her own. I: is her property. I believe that historically the way in which we have tried rape cases in this country, if not denying both those propositions, we have certainly paid insufficient heed to them. I have the greatest regard for the noble and learned Lord the Lord Chief Justice and my noble friend Lady Mallalieu, and I do not say so on any cosmetic basis. However, I believe that they are wrong.
The noble and learned Lord said again and again that we must, at all costs, avoid miscarriages in this area. 1 did dissent from that on the last occasion, although I did not develop my dissent. Nevertheless, I shall do so this evening. In some jurisdictions it is not possible to convict of rape without the eye witness evidence of two male witnesses. If we want to go that way we will, at all costs, avoid miscarriages in the sense that the guilty will not be punished; but we will do no service to those who are legitimate, honest complainants. Therefore. with the greatest respect to the noble and learned Lord the Lord Chief Justice, I do not adopt his formulation.
The tone of the debate has been remarkably moderate. with different views being expressed, both conscientiously and honourably, because, as I readily concede, this is an extraordinarily difficult and sensitive, area. However, I should like to take up one point that was made. When the question was raised at sentencing seminars carried out by the Judicial Studies Board and a suggestion was made that judges exercised their discretion too inappropriately, the noble and learned Lord said that it was met with outrage and disbelief. I am prepared to accept that. The proposition that six men falsely accused of terrorist offences in Birmingham had been wrongly accused was met year upon year by the judiciary of this country with outrage and disbelief. Indeed, that was not the only occasion when our system determined that outrage and disbelief were necessarily the safest guides to the most just outcome.
These are exceptionally difficult matters. I take note of the point raised by the noble Lord, Lord Cope of Berkeley; namely, why specify 24 hours? I shall illustrate the reason for that by referring to some questions that were raised earlier. We are actually talking about sexual activity at or about the time of the alleged offence. I shall certainly consider whether or not we ought to have a better formulation. for example, something along the lines of, "at or about the same time". I shall say why we want a cut-off point which is not arbitrary and, in so doing, I take assistance from the 59 examples given by the noble and learned Lord the Lord Chief Justice. If I recollect correctly, I believe that the noble and learned Lord referred to an allegation of rape on New Year's day and said that the claimant could be asked, "Did you have sexual intercourse on Boxing Day, December 29th?", and so on. He said that such questions would be relevant. However, would it equally be a relevant question to put to the complainant, "Did you have consensual sexual intercourse with a man 10 years ago?" Plainly the relevance would have diminished. It seems to me that it is perfectly sustainable to put "24 hours" or "at or about the time", even bearing in mind the arguments marshalled against us.
We have thought about this a good deal. I believe that there is a continuing mischief which needs remedying. We have looked at what was said in Speaking Up for Justice and in the responses that we received, and we believe that the law needs changing. We also believe that evidence or questioning about a complainant's sexual behaviour, whether with the accused or with anyone else, should only be admitted where it is truly relevant to an issue at trial. A refusal to admit or allow it might—and that is quite a low test—have the result of rendering unsafe a conclusion of the jury or the court on any such issue.
So far, we have travelled a path in agreement. However, we now part company essentially—or, very often, fundamentally—on the question of what issue is relevant at trial? It is worth remembering what the noble and learned Lord, Lord Ackner, rightly told us on a number of occasions. Essentially, the issues are: did intercourse take place between the complainant and the accused on the occasion in question? Did the complainant consent? Did the accused believe that the complainant consented?
Let us consider: "Did the complainant consent?" This means, "Did the complainant consent to sexual intercourse with this defendant?"—and not, as the proprietor of her own body, thoughts, life and choices, did she consent to sexual intercourse with others. I do not want to put this unnecessarily harshly, but there is sometimes a danger of thinking that women are wholly different from men in their capacity for choice. Moreover, because we were all brought up that way—that is, in a significantly male-dominated society—there is a danger of assuming that if a woman freely wishes to have sexual intercourse with A, then inevitably she must succumb to the desires of B, C, D, and so on. Not only is that wrong; it is fundamentally and deeply insulting.
I certainly undertake to think most carefully about what Members of the Committee have said. I am not entirely persuaded by everything. I do not have the perfect response to the Capulet syndrome which my noble friend put to me, but I certainly undertake to think about it. It is possible in very rare circumstances that such a defence might be mounted. I am bound to say that I know the deficiencies of that approach, but, as all lawyers are entitled to say, in all my years at the Bar and on the Bench I have never heard of a defence of that sort. But, obviously, my practice was too limited. There is a serious point behind what my noble friend 60 would regard as perhaps an extreme example, although I put that in an amicable way. I shall certainly consider what she said with great care. I believe that my noble friend is really looking at striking similarity. I give way to the noble Lord.
§ Lord Thomas of Gresford
Before the Minister leaves that point, can he tell us, from all his years of practice, and so on, whether he knows or has heard of a case where the defence is, "I didn't believe she consented, but she did actually consent"? I cannot think of that situation ever conceivably arising. Unless it does arise, it seems to me that the provisions of subsection (3)(b) are otiose because a defendant can always say, "I reasonably believed that she consented". Therefore, under subsection (3)(a) he is entitled, if it is relevant and the judge gives leave, to go into the claimant's sexual history.
§ Lord Williams of Mostyn
I do not believe that subsection (3)(a) entitles an accused to go into the claimant's sexual history. If in fact his defence is, "I reasonably believed", then he has the protection which is given him, subject of course to the parliamentary structure—and I emphasise "subject to the parliamentary structure"—which is incorporated in the Bill. Indeed, we return to the point of principle of the noble Lord, Lord Cope, of whether it is to be left to a discretion which many believe has been inappropriately exercised—and I put that with due deference to the judiciary—or is it to be the subject of a parliamentary structure. That principle, as identified by the noble Lord, really puts most of the submissions and arguments that have been made, which I stress are all well-meaning and honestly held, into that context.
A particular question was raised as regards what the consequences of the legislation had been, subsequent to the report of Dame Rose Heilbron. A good deal of the evidence which the noble Lord identified—and I shall not weary Members of the Committee by repeating it—indicates that applications were made and granted beyond the scope of what Dame Heilbron anticipated. It is true that the Bar has rules, but they do not actually attend to this mischief. It is also true that the Court of Appeal may issue guidelines but, on the understanding that we have, they do not necessarily govern what judges actually do. We should bear in mind the fact that if the judge allows in material "wrongly and inappropriately" and there is an acquittal, there is no review in the Court of Appeal Criminal Division of what has happened; nor any prospect of challenging the judge's determination on admissibility.
My noble friend Lady Mallalieu further questioned why things are different in Scotland. As the noble Lord, Lord Lester, indicated, we considered carefully the legislation in Canada, New South Wales and Scotland. As I understand it, the wording of the Scottish legislation places little emphasis on relevance or probity value. The Scottish Office research in 1992 considered that the width of the interests of justice gateway meant that sexual behaviour evidence was admitted much more often than had been intended. Some practitioners who were questioned said that the inclusion of a gateway 61 made the legislation "a waste of time". On various occasions examples have been given about what might or might not be admissible.
§ Lord Lester of Herne Hill
Before the Minister leaves the subject of research and professional standards, is he aware of Professor Temkin's in-depth study involving interviews with a small sample of senior criminal practitioners at the Bar? Her interviews with experienced advocates who had appeared both for the defence and for the accused indicated that—the study comprised male and female barristers, including male banisters "of a certain age"The facts were regarded as of relatively minor significance, the main task being, as one barrister put it, 'to undermine the woman's personality'".Professor Temkin states that,One eminent QC said he always applied to the judge to admit the woman's past sexy al history because 'if a woman could be depicted as a slut' juries were disinclined to convict".Is the Minister aware of that in-depth study?
§ 6.45 p.m.
§ Lord Williams of Mostyn
One knows of a number of mischiefs that follow from that. First of all, often material is not deployed to the issues which matter; namely, did intercourse occur, was there consent, was there a belief in consent? The material is really used—I think I detected an echo of this earlier this evening—to attack credibility. I submit that the true analysis of a woman who says, "I was raped" should not allow the fact that she has consented with her own body to sexual intercourse with another person on a different occasion. As regards credibility, I do not think it is legitimate to use that information.
The noble Lord, Lord Thomas, intervened when the noble Baroness, Lady Ludford, made a point about previous convictions. However, witnesses can be cross-examined about previous convictions if they affect credibility; in other words, if they are convictions of dishonesty. As far as I am aware, having voluntary sexual intercourse with someone on an earlier occasion does not necessarily involve any allegation of dishonesty, at least not on behalf of the consenting woman, although she may have been coaxed into it by something rather less than honest on the part of her then sexual partner.
These matters are extremely difficult. I do not think anyone who has been involved in a rape case as an advocate, a practitioner or a judge feels anything other than deep unease. That may be due to the nature of the charge and the nature of the evidence. However, we have come to the conclusion that we need to establish a parliamentary structure in this regard. I believe that we have it right. I do not dismiss any proposition put forward this evening. I give the undertaking that we shall consider the matter most carefully. However, I cannot give any guarantee that we shall reach a different conclusion.
My noble friend Lady Mallalieu said that Amendment No. 125 is a modest amendment. I have previous convictions in this regard because when I was in 62 opposition every amendment I put forward was always described as extremely modest. However, I do not believe this measure is all that modest; in fact, it is extremely wide. Amendment No. 125 states,Notwithstanding the other provisions of this section, the court may … give leave for any evidence to be adduced or'"—I add the word "any" at this point"—question to be asked if and to the extent that the court considers such evidence or question to be necessary in the interests of justice to ensure a fair trial of the accused".That is not modest a: all. It is an extremely wide discretion.
I understand that the noble Baroness and the noble and learned Lord the Lord Chief Justice may say that they intend the measure to provide a wide discretion. I revert to the point at which we began. A large number of complainants will either not complain or, having complained, will not go to court if they know—they have to be told about this by the police officer or the CPS if they ask this question—that they will be asked about the whole of their past sexual history. That is not relevant to any issue and will do nothing apart from demean someone not as a witness of truth and honesty but just because that person has exercised sexual choices in her own way. As 1 read the amendment, it is an extremely wide provision. I could, of course, be wrong in my construction of it.
I hope that I have dealt with the main themes here. I do not apologise for repeating the fact that I think the noble Lord, Lord Cope, identified the position correctly. Is this to be a matter for the courts' discretion or for parliamentary structure? We think that this is a matter for parliamentary structure on the face of the Bill. I recognise that other people may honourably disagree with that. I undertake yet again to think carefully about what has been proposed. However, I do not think that we shall deviate from: he principled approach that vie have adopted, even if the Committee thinks that that principle is ill-founded.
§ Lord Ackner
I shall be brief. The Minister has said that this is a difficult matter. It has also been said that the courts have not given the kind of guidance that would be helpful. In my respectful submission, they have. In the case of Viola in 1983 the Lord Chief Justice said,Inevitably in this situation, as in so many similar situations in the law, there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case. On one hand evidence of sexual promiscuity may be so strong or so closely contemporaneous in time to the event in issue as to come near to, or indeed to reach, the border between mere credit and an issue in the ease. Conversely, the relevance of the evidence to an issue in the case may be so slight as to lead the Judge to the conclusion that he is far from satisfied that the exclusion of the evidence or the question from the consideration of the jury would be unfair to the defendant".The Court of Appeal in. the Brown case—the judgment being given by Lord Justice May—having cited what I have just read out, continued to put the matter as shortly as the following,The real inquiry is whether on the facts of the particular case the complainant's attitude to sexual relations could he material upon which in these days a jury could reasonably rely to conclude that the 63 complainant may indeed have consented to the sexual intercourse on the material occasion, despite her evidence to the contrary. It is in every case a question of degree".I respectfully submit the matter could not have been put more succinctly and more clearly. To have instead of those words of wisdom this complex section seems to me to invite problems, not to solve them.
I respectfully submit that the Minister is not quite right when he says that if the judge gives too favourable an approach and it results in an acquittal, nothing can be done. I do not think the Home Secretary's reference procedure has been abolished. The Home Secretary could go to the Court of Appeal and invite a ruling as to whether in principle the approach by a learned judge was right or wrong.
Obviously I would not seek to put my amendment to the vote at this stage, but I—and others, no doubt—will be concerned about focusing on the right answer so that it can be dealt with on Report. I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Lord Cope of Berkeley moved Amendment No. 114:
§ Page 28, line 24, after ("(5)") insert ("or (5A)").
§ The noble Lord said: With this amendment and those grouped with it, we move from the great issues of principle, which have been of interest to the Committee over the past hour and a half, to matters of much smaller detail.
§ Amendment No. 114 and Amendment No. 122, grouped with it, are addressed to the defence that someone else committed the rape, attack or sexual offence in question rather than the defendant. We have not discussed this possible defence, but obviously it arises in some cases. The amendment is intended to preserve the admissibility of evidence which may be relevant to that defence.
§ The other three amendments—Amendments Nos. 119 to 121—seek to adjust the wording of the clause to deal with the situation where there is more than one defendant. This also is a practicality which arises in the courts. It did not seem to me or, to be more accurate, to my noble and learned friend whose name appears also on the amendments, that that had been adequately dealt with in the wording of the clause. I beg to move.
§ Lord Williams of Mostyn
As to this group of amendments—Amendments Nos. 114 and 119 to 122—Clause 40(3) already allows the courts to give leave for sexual behaviour evidence to be introduced in relation to the issue of whether the offence was committed by the defendant or another person. At present, the court will have to consider several criteria before giving permission under subsection (3). It will have to consider whether the evidence or questions relate to a specific instance or instances of behaviour, whether their absence might lead to a conclusion on a relevant issue being unsafe, and whether the real reason for asking for the evidence or questions to be admitted is to impugn the complainant's credibility rather than any relevance 64 to an issue in the case. Amendments Nos. 114 and 122 would not require the court to consider those last two criteria. We think that it is important that it should.
The amendment suggests that one defendant could play off another in introducing evidence or questions about the complainant's previous sexual behaviour. We do not think that that is appropriate. The provision in subsection (5) is intended to allow a defendant to rebut evidence introduced by the prosecution against him. The prosecution's ability to put forward evidence about the sexual history of the complainant is unfettered; it is only fair to the defendant therefore to allow him to introduce evidence or questioning on the grounds of rebuttal, if the court so agrees. Any defendant wishing to introduce sexual behaviour evidence would have to apply to the court for leave. If the court gave leave to one defendant under subsection (3), it could theoretically give leave to another who wished to introduce evidence which suggested something different if it was relevant to his case. That is theoretically possible, but it is perhaps difficult to conceive in practice.
The defendant should be able, in the interests of justice, to rebut evidence that the prosecution has introduced with the aim of showing that he committed the crime; there is no need for him to be able to rebut his co-defendant's evidence. The defendant does not need to prove or disprove anything that his co-defendant has said.
An unintended effect of these amendments would be that, in giving leave under the suggested new subsection (5A), the courts would not have to consider whether the question or evidence was intended to impugn the complainant's credibility or whether, as I said earlier, it related to a specific instance or instances of behaviour. For the reasons I spelled out earlier today, that cannot be right.
§ Lord Cope of Berkeley
The Minister has set out in some detail his response to these amendments. I shall need to consider what he has said. In the meantime, I beg leave to withdraw the amendment.
§ Amendments, by leave, withdrawn.
§ [Amendments Nos. 115 to 123 not moved.]
§ Lord Cope of Berkeley moved Amendment No. 124:
Page 29, line 5, at end insert—
("( ) Where evidence or questioning is or has been allowed or admitted in terms of this section, the court may at any time limit as it thinks fit the extent of the evidence or the questioning.").
§ The noble Lord said: As I think is clear, Amendment No. 124 seeks to provide a power for the courts to limit the evidence or a line of questioning if it appears to have gone beyond that anticipated at the time an application to pursue that line of questioning was made. It may be that the amendment is unnecessary because of some other clause, but it certainly seems to me necessary to have some restriction of this kind. The amendment would ensure that where the evidence develops in a manner which cannot have been foreseen by the court— 65 and probably anyone else—at the time the original ruling was made, the court can restrict the impact of its ruling. I beg to move.
§ Viscount Brentford
I support the noble Lord on this amendment. I am sure that the noble and learned Lord, Lord Ackner, if he were in his place, would say that the judges already have this right. The amendment would strengthen the Bill and the hope given to the general public by the rest of this part of it. I would like to see something along these lines incorporated into the Bill.
§ Lord Williams of Mostyn
Clause 42(2) requires the court to set out the extent to which it is giving leave for evidence to be adduced or questions asked in this relevant area—where it is decided, of course, that leave should be given at all. We expect those limits to be tightly defined. When evidence is being presented or adduced, the court can step in at any time to ensure that the limits are adhered to. Obviously, if the questioning becomes irrelevant, abusive or humiliating, the court already has common law powers which the judge is obliged to exercise in the control of the trial.
This amendment suggests that, during the trial, the court should not feel bound by the limits set in response to the application for the admission of the evidence or the questions. Except on the bases of irrelevance, abuse or humiliation, it would not be appropriate for the court to overturn its earlier decision and limit the evidence or questions further or not so far as had been originally decided. That is what this amendment would allow. I do not think that that would help. It would he confusing and unfair to the defence having been given leave to conduct the case in a particular way, and to the complainant. I believe that the common law powers are sufficient.
§ Lord Cope of Berkeley
I am grateful to my noble friend Lord Brentford for his support. However, in the light of what the Minister has said, which I shall consider carefully, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 125 not moved.]
§ Clause 40 agreed to.
§ Clause 41 [11Verpretation and application of section 401]:
§ [Amendment No. 126 not moved.]
§ Clause 41 agreed to.
§ Clause 42 agreed to.
§ Clause 43 [Restrictions on reporting alleged offences involving persons under 18]:
§ 7 p.m.
§ Lord Cope of Berkeley moved Amendment No. 126A:
§ Page 30, line 28, at end insert ("in public by the police in the course of their duties").
§ The noble Lord said: We now move on to a completely different part of the Bill dealing with 66 reporting restrictions. I am sure it will be within your Lordships' knowledge that a great deal of concern has been expressed about these provisions by the newspapers, by the Guild of Editors and by others. The Government's idea, if I may summarise it. I hope not unfairly—is to extend the statutory prohibition on reporting alleged offences involving persons under 18 as witnesses or victims or, under Clause 44, if young people are involved as the accused.
§ The first difficulty about the clause to which attention has been drawn by editors and by the newspapers is the one to which Amendment No. 126A is addressed. It is that there is no definition of what constitutes an allegation for the purposes of this legislation. It seems to me that if anyone says, even in private, that an offence has been committed, that may be taken to be an allegation. It is indeed an allegation. But in some respects the restrictions, which are total, apply from that point on. There is no way in which editors or anyone else could know whether someone privately has made an allegation.
§ However, it is not as extreme as that in every case. It may be that some wild allegations have been made publicly—they may have been shouted out in the street or published in writing—which are totally unfounded and which no one would take seriously. That would still be a public allegation and would set in motion all the restrictions provided for by the clause. We need to know from the Minister what he thinks constitutes the making of an allegation. How are the media to know that an allegation has been made so that they can realise that the law should apply and that they are not allowed report the matter? It may be that a newspaper or an editor does not know of a specific allegation having been made but, nevertheless, might in those circumstances commit an offence by accident. Not knowing of the allegation, the newspaper or editor might publish some facts which go against what is permitted under Clause 43.
My amendment seeks to suggest one definition which might be appropriate as a trigger for the start of the restrictions on reporting. The amendment states that the allegation should be made,
in public by the police in the course of their duties".
Once a police spokesman makes a public statement that an alleged offence has been committed—probably by persons unknown at that stage—the press would be placed officially on notice that this was an offence to which the clause should apply and not one which the press could report or report in any specific terms.
§ It may be that the Minister will not like the definition that I am suggesting in Amendment No. 126A. However, I do not think that no definition will do. If the Minister dislikes Amendment No. 126A I hope he wi11 suggest a better alternative. There must be some trigger so that all concerned, particularly the news media—television, radio and the newspapers—can know that allegations have been officially made and that the restrictions, which are intended, quite rightly-4 sympathise with them—to protect the identity of young 67 people, have begun to bite. They are very strong prohibitions, as I shall seek to show in later amendments. I beg to move.
§ Lord Windlesham
Other than a brief mention at Second Reading by the Minister of State, there has been no discussion at all in the long hours we have spent in Committee on the Bill on the important matter of reporting restrictions. The intention of Clauses 43 and 44 is explained in the Explanatory Notes as being to clarify and extend the present statutory protection of certain witnesses and alleged child or juvenile offenders from being identified in the media. The present lacuna is addressed in Clause 43; that is, the time between the making of an allegation that an offence has been committed and the charging or the laying of the information before a magistrate. Clause 43 would eliminate that. It is highly desirable that the interests of potentially vulnerable children and young people are to be protected from potentially harmful media identification and the resulting publicity. So, in my opinion, this clause is welcome.
My noble friend Lord Cope has raised an important point. I suspect that, speaking as he has from the standpoint of newspaper editors, we shall end up on different sides of the argument on this matter. However, the question of what constitutes an allegation occurred to me as well. It is not clear at present, either in the Bill or in the Explanatory Notes, who makes the allegation. I have considerable doubts as to whether it should simply be the police. We must remember that some allegations made in the press, substantiated or otherwise, can be extremely damaging to young people who are accused of what may be a serious criminal offence, and to witnesses, because the Bill refers to, "those involved in criminal proceedings". It would therefore be helpful to hear from the Minister a definition as to what constitutes an allegation.
§ Viscount Brentford
I have a great deal of sympathy with this amendment. However, the problem that I have with the wording may be what the noble Lord, Lord Cope, hinted at; namely, that an allegation can often be made by the media long before the police have formulated it. I can imagine that the media will often be the first to report an offence being made. Therefore I wonder whether this amendment can work in practice. I therefore look forward to hearing the Minister's reply. Surely it is important that this point is clarified. At present it is obscure to the media and to other people.
§ Lord Monson
When the Minister replies, will he explain why a witness or potential witness aged 17 years and 11 months is said to be in need of the protection of Clause 43, while a witness aged, let us say, 18 years and one month is said not to be in need of that protection?
§ Lord Williams of Mostyn
There is always a cut-off point, whether it is driving at 30 mph as opposed to 30.2 mph, and 18 is normally regarded as the occasion 68 of reaching adulthood in terms of ability to vote and similar activities. We think that is a sensible cut-off point. It is used in other legislation.
To summarise the position we have arrived at, the reason that "allegation" is included is that the provision follows the precedent of Section 1 of the Sexual Offences (Amendment) Act 1992. There has been no difficulty in practice in using the word "allegation". I entirely agree with the noble Lord, Lord Windlesham, that it should not be limited to the police and public. After all, there are many bodies which prosecute, or have charge of allegations, in the context of allegations against children—teachers and social workers, for instance; an allegation made to the press itself may also count.
On a small point, there is a defence for publishers, which includes the print media, in Clause 48(5). However, my fundamental response may be of assistance to the noble Lord, Lord Cope, in deciding whether or not he wishes to press this matter at all. I am very conscious of the fact that we need a free press, which ought to be able to report matters of public interest unless there are convincing reasons for not doing so. We adopted that approach in relation to the Human Rights Bill and produced a satisfactory outcome, and similarly in relation to what was then Clause 31 of the Data Protection Bill, again with a satisfactory outcome.
Representatives of the press and the broadcast media visited officials in the Home Office last week. I have undertaken to see them again on Wednesday to talk through all the issues that concern them. Some concerns may be wrongly based; some may be perfectly legitimate. Therefore I assure the Committee that I am genuinely approaching those discussions with an open mind. In the past, my dealings with the broadcast and print media, not least the Guild of Editors, have been helpful and productive. They have always approached matters in an open-minded way.
Having dealt with the point on allegations and the defence in Clause 48(5), for the remainder I should prefer to have discussions with the media representatives on Wednesday to see whether we cannot safeguard their legitimate interests as well as the interests that all Members of the Committee feel need to be safeguarded in the context of children.
§ Lord Cope of Berkeley
I am glad to hear that the Minister is approaching his forthcoming meeting with editors with an open mind. We were told that he would approach the whole Bill with an open mind. With due respect to him, that has not been frightfully apparent thus far in relation to some of the earlier clauses. However, in view of the forthcoming meeting and his remarks about the provisions of Amendment No. 126A, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.69
§ 7.15 p.m.
§ Lord Windlesham moved Amendment No. 126AA:
§ Page 31, line 18. leave out subsection (6).
§ The noble Lord said: I shall speak also to Amendments Nos. 126E and 126F. It is fortuitous that the Minister of State is shortly to meet representatives of the Guild cf Editors and the broadcasting organisations
§ Lord Williams of Mostyn
I said I was meeting representatives of the media. I did not specifically include the Guild of Editors.
§ Lord Windlesham
The point that I was about to make regarding representatives of the media is unaltered. When the Minister meets those representatives, will he bear in mind that there is another, equally important public interest which must be balanced with the interests of a free press? It is to that that I wish to address my remarks.
Clauses 43 and 44, setting out the restrictions on reporting alleged offences and criminal proceedings involving persons tinder 18, give the court the discretion to allow publicity, or partial publicity, in relation to the identities and other details of defendants under 18 if they are satisfied that it is in the interests of justice—a phrase repeatedly used in the debates on previous amendments. These amendments seek to test that provision in the light of Britain's international obligations under the relevant conventions.
Leaving aside the European Convention on Human Rights—since the noble Lord, Lord Williams of Mostyn, has made a statement on the face of the Bill; or perhaps I should say on the cover to the Bill rather than in the contents—that in his view the provisions are compatible with the convention rights, that leaves us with three international conventions to which the Government of the United Kingdom is party.
The earliest is the International Covenant on Civil and Political Rights of 1966. The covenant required that,any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires, or the proceedings concern matrimonial disputes or the guardianship of children".Next came the United Nations Convention on the Rights of the Child in 1989. Article 40 required the privacy of children alleged as, or accused of, having infringed the penal law,to have his or her privacy fully respected at all stages of the proceedings".More detailed were the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (known as the Beijing Rules) in 1985. Rule 8.1 statesThe juvenile's rights to privacy shall be respected at all stages in order to avoid ha-m being caused to her or him by undue publicity, or by the process of labelling".Rule 8.2 statesIn principle, no in-ormation that may lead to the identification of a juvenile offender shall be published".In the official commentary to the rules it was made clear that, 70Young persons are particularly susceptible to stigmatisation. Criminological research into labelling processes has provided evidence of the detrimental effects (of different kinds) resulting from the permanent identification of young people as 'delinquent' or -criminal'".Rule 8 stresses the importance of protecting the juvenile from the adverse effects that may result from the publication in the mass media of information about the case; for example, the names of young offenders alleged or convicted.
It is important to recall that the United Kingdom has accepted all those obligations. Her Majesty's Government were one of the first to sign and ratify the UN Convention on the Rights of the Chill Two more recent reports are also relevant. The report of the 10th session of the Committee on the Rights of the Child in 1995 said:The privacy of the child should be fully respected in all stages of proceedings, including in relation to criminal records and possible reporting by the media".The report of the 11th session in 1996 statesIt is important that the media themselves do not abuse children. The integrity of the child should be protected in reporting about, for instance, involvement in criminal activities".We should never underestimate the intensity of media pressure on the courts to lift reporting restrictions. There have been recent examples of high profile cases involving young people charged with offences. But none has been as vivid and poignant as the trial of the two boys, aged 10 at the time, for the murder of a much younger child, the victim being James Bulger. In situations of that kind, the interests of justice, to which we have so often referred in these debates, and the right to know, about which the noble Lord will hear much in his forthcoming meeting, pull in different directions.
So it is for that reason, which I have developed in the past few minutes, that I submit that additional protection for children and young persons, as contained in this part of the Bill, is welcome; it is needed and it should be drawn as tightly as possible. There should be no more than minimal exceptions to the doctrine of no publicity. If that is so, there will be a chance that the extreme pressures the other way may be resisted. I beg to move.
§ Lord Patten
My noble friend Lord Windlesham and I have known each other for too many years for him to take offence when I tell him that I dissent a little from the line he has taken on subsection (6). In all the years that I had the pleasure of representing him in another place, never a cross word passed between us when he was my constituent. I hope that no cross word will pass between us after this evening's debate.
It is critically important that in cases dealing with juveniles, where the public interest is clear, judges should have the opportunity to waive the total ban on publicity. Why do I say that? I say it because young people mature at a different rate. The noble Lord, Lord Williams of Mostyn, at the end of the last group of amendments, referred to children as being those under the age of 18. I believe that many 16 and 17 year-olds would take the attribution of being a child as an insult if they were called it at any stage.
71 The noble Lord, Lord Monson, made an important point from the Cross Benches a few moments ago. He asked why we have a cut off at 18. What is the difference between someone aged 17 and 11 months and someone aged 18 and one month? The noble Lord put his finger on it; it is extremely difficult. If we are to stick with the age of 18—and I am in favour of 16 years of age, but I know there is no chance of that provision being introduced into the legislation—then when the public interest demands it the learned judge should have the opportunity to waive reporting restrictions. Then when someone of 16 or 17 is judged to be mature, and is not a child but has done something dreadful, it would be made public. It is often said at the moment that we cannot trust the judges. I believe that we can very much trust them when they have seen someone in the dock for a period. We can trust them to make up their own minds as to whether the boy or girl under 18 is nevertheless of such mature years and what they have done is so dreadful that it should be reported. That would demonstrate to the outside world the abhorrence of the judicial system.
Thus, I do not agree with my noble friend Lord Windlesham. It is the first time that I have ever dissented from him in public and I hope it is the last. Nor do I wish to cause the Minister any disquiet by telling him that he has my wholehearted support. If necessary, I shall even go through the Lobbies with him.
§ Lord Cope of Berkeley
I also hesitate to go against my noble friend Lord Windlesham. However, it seems to me to be right that Clause 43(6), which is referred to in the first of the amendments, should remain in the Bill. In this case, it is not dealing with a defendant, an alleged offender, it is dealing with a victim or witness, someone else involved in an offence. The offender may be of quite a different age. The provision is intended to protect people involved who are under 18.
Subsection (6) does not widen the provision a great deal, it only mentions "the interests of justice". That is the only criterion which the criminal court has to apply in deciding whether to dispense with the restrictions. It seems to me that the override should apply here.
The case for the later amendments dealing with offenders is slightly greater, but nevertheless I support the other two subsections remaining in the legislation.
§ The Earl of Mar and Kellie
I must caution the noble Lord, Lord Patten. His remarks were backward-looking, dealing with what someone had done. It would in no way help the rehabilitation and resettlement of the young person if he had had his or her name emblazoned across the newspapers. It would not be helpful for the future.
Perhaps I may throw more light on the matter. I am puzzled by the effect of subsection (2) to which subsection (6) refers. My noble friend Lord Cope mentioned the result of the words "involved in the offence". Obviously it does not mean having committed or been alleged to have committed the offence, it refers to the victim or a witness. If it is any of the people, 72 whether a person who has been acquitted, who has been a victim or who has been a witness, if it is right that they should be protected from publicity under the age of 18, why should it then be perfectly all right for the whole matter to be disclosed after they have reached the age of 18? That is what I find so puzzling about subsection (2). If it is puzzling in relation to subsection (2) it has a bearing upon the question whether or not subsection (6) should stand part of the Bill.
§ 7.30 p.m.
§ Lord Williams of Mostyn
I deal first with Clause 44. This is in effect a continuation of Section 39(5)of the Children and Young Persons Act 1933. By virtue of the 1933 provisions restrictions on reporting that are imposed automatically in youth court proceedings can be removed if the court is satisfied that it should be done in the interests of justice. That is an important safeguard. I respectfully agree with the noble Lord, Lord Patten, that the safeguard must be there for the court to exercise the power. As the noble Lord, Lord Windlesham, pointed out, Clause 43 is an extension back to the point of allegation and is therefore capable of being, and in the generality is intended to be, a further protection for those who need it on the basis that he outlined.
The noble Lord, Lord Renton, is right to point out that the phrase is "involved in". It may well be appropriate for the police and media representatives to apply to the court for an order for restrictions to be lifted. I give an important example that is very much to the point these days. It would be very important in a case of alleged child abduction for the identity of the child involved to be made public. I do not want to trespass into particular cases that are before the courts at the moment. It is, however, generally recognised that there are cases in which publication is of enormous assistance to the child in question. To take just one example, it is very important that the media should have power to carry the details of a missing child if the court makes that order.
Obviously, one wants to bear in mind—Clause 43 makes this plain—the interests of the young, but it should not be an absolute prohibition. In some circumstances it is right that the public should know not simply about a defendant but about those who may have been victims. As an example one has in mind Dunblane. There may well be a genuine and proper public interest in the public knowing the details. I sympathise with the theme expounded by the noble Lord, Lord Windlesham, but I believe that this discretion should be retained in Clauses 43 and 44.
§ Lord Windlesham
This debate has been a healthy one. It has shown the independence that this Chamber can bring to bear in the scrutiny of legislation. Conservative Peers have shown that they can dissent just as vigorously as others, as demonstrated in such a spectacular way by the noble Lords, Thomas of Gresford and Lord Lester on the Liberal Democrat Benches and others who spoke on one side or other of the divide in relation to the previous amendments. Likewise, on the Government side the noble Baroness, 73 Lady Mallalieu, did not by any means agree with the Minister's view. She argued her case very persuasively and forcefully.
There is no more to be said at this stage. I see the Government Chief Whip sitting in his place, no doubt attempting to conceal his glances at the clock. This issue has been thoroughly discussed. I am sure that the noble Lord, Lord Williams, will take to heart the point I made earlier that if he meets media representatives, which is an entirely proper and appropriate thing to do, he will recall that the United Kingdom has treaty obligations. It is very easy for those who negotiate on behalf of the Government to agree to treaty obligations. The Foreign Office and the Home Office have copies of them on their shelves. But I Jo not believe that treaty obligations are frequently at the, forefront of Ministers' minds when they receive delegations from special interests. But we have great confidence in the Minister. I beg leave to withdraw the amendment.
§ Amendment, by: leave, withdrawn.
§ Lord Cope of Berkeley moved Amendment No. 126B
Page 31, line 42, at end insert—
("( ) Nothing in this section shall impose any restriction on the police from publishing any information in the course of their duties, nor on the reporting of any such publication by the police.").
§ The noble Lord said: I beg to move Amendment No. 126B. The Minister has just referred to the way in which the police sometimes seek the assistance of the media in cases involving missing children and all kinds of other cases. He gave the impression that such matters could be readily reported. That is not the impression I gain from reading the Bill or studying what people have said about it. The noble Lord made particular reference to the Dunblane massacre. No doubt he was prompted to do so by the leader in today's Sun. Obviously the Minister does not read the Sun because he shakes his head. Nevertheless that matter was referred to in the leader this morning It was stated that restrictions would have made the reporting of the Dunblane massacre much more difficult.
§ This Bill is not intended to apply to Scotland but only to England, Wales and Northern Ireland and therefore the precise case is not as good as it may appear to be. It is, however, a very good example of what can happen.
§ If the Bill's provisions had been followed in their entirety the newspapers would not have been able to say anything about which school had been involved in the massacre. They could not have named the dead teachers because, at least locally, that would have given away the identity of the school. It would have introduced almost wartime restrictions. Can the Committee imagine the anguish that would have been caused if radio and television in that case had had to say in effect that a gunman had murdered children and teachers in a school somewhere in Scotland without being any more specific? The telephone lines would have melted all over Scotland and else where in attempts to identify the school. In that case the gunman killed himself at the same time and so the case never came to court. I do not see how restrictions on the reporting of the name "Dunblane" and a number of other matters connected with the case would ever have been lifted.74
§ I am quite sure that there must be a way round the problem, but no British newspaper, television channel or radio station could have given any indication as to where the school was. We would soon have got to know about it because the foreign media would have reported it very promptly. With the Internet and all the rest of it the details would have been available in Britain extremely quickly, although they would have been provided under the counter and from overseas. A court might have been specially convened to permit publicity to be given to it, but it would have been no good the court saying that it was in the interests of justice that restrictions should be lifted, which is the test provided in the Bill, because no one was being tried. The man was already dead and everybody knew it. Therefore, justice would not be served by publishing the name of the school and the other particulars, and the situation would have been extremely difficult. There are other examples, at which the Minister hinted. I refer to the disappearance of children. In such a case no court is involved in the early stages. It is the police who are involved in organising the hunt for the missing child, and often the public are called upon to he 1p and look out for certain things. I became involved in a case of that kind in my constituency about two years ago.
§ I give another theoretical example. Let us suppose that one has a hit and run driver who injures a child outside a school. The police would be unable to reveal the child's name or the name of the school. No particulars could be given, not even those which might enable the offender to be caught. One might say that one could go to the court and argue that it was in be interests of justice to release particulars of what had happened. But to do so would involve considerable delay for the police and, if the offender were not identified and brought to court, the ban would last indefinitely.
§ Therefore the amendment seeks to permit the police in the course of their formal duties to make announcements which could be reported. I realise that the police rather than the courts would decide whether it is right that further details should be reported. However, I believe that they are the right people at the time of the allegations to do exactly that. The courts do not become involved until later when a charge is preferred against someone and the matter moves into a different gear and a slower gear in the interests of justice. However the police have sometimes to act quickly in the interests of identifying the offender.
§ I sympathise with the general aim underlying the clauses, but, as drafted, they involve a considerable amount of overkill. They need careful consideration. I am sure that the representatives of the media whom the noble Lord will meet later in the week will add further examples. However, those that I have given indicate some of the disadvantages of the wide drawing of the restrictions at present.
§ The Earl of Mar and Kellie
Perhaps I may draw the attention of the noble Lord, Lord Cope, to the fact that Chapter IV—Clauses 43 to 49—applies to Scotland. The clauses prevent Scottish newspapers from 75 publishing such stories from England and Wales. That will be a new law. Previously the Scottish press were free to report on such matters.
§ Lord Cope of Berkeley
I am grateful to the noble Earl for pointing that out. While it applies to the newspapers in Scotland, an incident in Scotland such as Dunblane would not be covered by the restrictions.
§ 7.45 p.m.
§ Lord Williams of Mostyn
The media have had concerns, some of which have been articulated by the noble Lord, Lord Cope of Berkeley. I believe that some of their fears may be based on a misunderstanding of what is intended. That is the reason that I wish to meet them, to see whether or not we can find common ground. I think that we should be able to do so.
I need say no more at present except that the amendments are defective. They assume that the only prosecuting authority is the police. Of course that is not so. Customs and Excise or the DSS come to mind immediately. It would give far too much discretion to the police. There is no difficulty in terms of speed because in Clause 43(8) we specifically cater for application to a single justice alone. That can be done very quickly.
Some of the questions have been based, I believe, on misapprehensions. The restrictions apply to juveniles involved in the offence; so one can name schools and headmasters but not the juveniles concerned. However, I believe that the press has a proper part to play. Its concerns should be carefully attended to. Equally, in answer to an earlier observation by the noble Lord, Lord Windlesham, if any pressure group or group with interests involving the child wishes to correspond or to meet with me, I have said constantly that the door is always open to anyone who has a point of view to express.
I repeat: I think that the press has fears that may be put to rest by explanation. I am more than happy to listen to them. First, the amendments are too narrowly drawn. Secondly, I hope to give some sensible indication to noble Lords at Report stage as to whether or not I have been able to come to agreement, and in what terms.
§ Lord Cope of Berkeley
We shall have the opportunity to return to these matters at a later stage. I accept that the intention underlying the clauses is good. My concern is with the details of the way in which it is applied, as I sought to make clear.
I realise that the amendment does not include all the prosecuting authorities. My recollection is that Customs and Excise does not have occasion frequently to deal with crimes dealing with juveniles, although it does sometimes. I had some responsibility for that body for a couple of years although not as regards prosecution.
It seemed to me that identifying a school was prohibited by Clause 43(5)(c). However, perhaps I misunderstood what the Minister said. I shall read carefully in the written record what he had to say. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Cope of Berkeley moved Amendment No. 126C:
Page 31, line 42, at end insert—
("( ) Nothing in this section shall impose any restriction on the reporting of Parliamentary proceedings.").
§ The noble Lord said: When a particularly hideous crime is committed, a Statement is sometimes made in both Houses of Parliament. I hope that the Bill does not prevent the reporting of such parliamentary proceedings or, for that matter, lesser proceedings of that kind. I seek reassurance from the Minister. I beg to move.
I believe that that assurance will be given easily to my noble friend. Indeed, having been in Parliament since 1945, first in one House and then the other, I have never heard of any restriction upon parliamentary proceedings—although during the war if Parliament so resolved there were such restrictions. I hope that I do not disagree with my noble friend but, if I do, I seek assurance from the earlier remark of my noble friend Lord Windlesham. He rightly referred to noble Lords' independence of opinion. That is very important. We put individual intellectual ability above party commitment. I hope that we always shall.
§ Lord Williams of Mostyn
The point identified by the noble Lord, Lord Cope, is whether the publication of the Official Report would be affected by Clause 43. That is governed by privilege and precedent. Words spoken by Members of both Houses have absolute privilege by virtue of Article 9 of the Bill of Rights. The verbatim report of those words published in the Official Report attracts absolute privilege by virtue of Section 2 of the Parliamentary Papers Act 1840. Television and radio excerpts from Parliament have qualified privilege from prosecution by virtue of Section 3 of the Act; that is, if they can show that they have acted in good faith. So if there is an accurate, verbatim record of what was said in the course of parliamentary proceedings, and it is broadcast in good faith, the broadcaster enjoys immunity from criminal prosecution. We have no intention of altering the way in which proceedings of Parliament are reported. Restrictions on reporting which apply to other statutes do not have the protective caveats such as the one suggested by the noble Lord. I quite understand. He wished, I think, for the answer I have given.
§ Amendment, by leave, withdrawn.
§ Clause 43 agreed to.
§ Clause 44 [Power to restrict reporting of criminal proceedings involving persons under 18]:
§ Lord Williams of Mostyn moved Amendment No. 126D:
§ Page 32, line 7, leave out from ("1933") to end of line 9.
§ The noble Lord said: In this otherwise perfect Bill, a gap has been found. We need to fill it in order to deal with Northern Ireland. Therefore, we have tabled 77 technical amendments to extend Section 49 of the Children and You in Persons Act directly to Northern Ireland. I beg to move.
I do not resist the amendments, but I am puzzled about one issue. The new proposed subsection (13) provides that for the reference to the age of 18 there is to be a reference to the age of 17. Does that mean that people in Northern Ireland mature a year sooner than others? The new proposed subsection (14) refers to a young person who has attained the age of 14 but is under the age of 17. That needs a little explanation.
§ Lord Williams of Mostyn
I know that with the noble Lord in the Chamber I should not have spoken so quickly. I will write to him giving those technical details. The answer has arrived in front of me, but it will not be sufficient for the noble Lord's purposes. It states that the new subsection is consistent with Northern Ireland legislation. I believe that the noble Lord is entitled to a better explanation. He shall have it by writing and I shall place a copy in the Library.
§ On Question, amendment agreed to.
§ Lord Windlesham had given notice of his intention to move Amendment No. 126E:
§ Page 32. line 15, leave out subsection (4).
§ The noble Lord said: My amendment has already been spoken to. Provided that there is no resiling from the additional protection which this part of the Bill affords to children and young people, witnesses, victims and defendants, I shall not move it.
§ [Amendment No. 126E not moved.]
§ [Amendment No. 126F not moved.]
§ Clause 44, as amended, agreed to.
§ Clauses 45 to 47 agreed to.
§ Schedule 2 [Reporting restrictions: miscellaneous amendments]:
§ Lord Williams of Mostyn moved Amendment No. 126G:
Page 50. line 39, leave out ("or Northern Ireland") and insert—
("(13) In its application to Northern Ireland, this section has effect as if—
§ (14) References in this section to a young person concerned in proceedings are, where the proceedings are in a court in Northern Ireland, to a person who has attained the age of 14 but is under the age of 17."").
§ On Question, amendment agreed to.
§ Schedule 2, as amended, agreed to.
§ Clauses 48 and 50 agreed to.
§ Clause 51 [Determining competence of witnesses]:
§ Lord Swinfen moved Amendment No. 127:
§ Page 37, line 23, leave out ("calling") and insert ("opposing the competence of').
§ The noble Lord said: In moving Amendment No. 127, I shall speak also to Amendments Nos. 128 to 130. I apologise for the noble Lord, Lord Rix, whose name heads the list of those proposing the amendment. Unfortunately, he has 'peen called away. A3 drafted, this clause places a burden of proof upon the witnesses to prove their competence, which runs counter to the putative assumption of competence found in the previous clause. As a matter of principle, I believe that competence should be assumed unless there is good evidence to dispute that assumption, and to this end it should be for the party opposing the competence of the witness to satisfy the court that that is so. This, I am told, works perfectly well in the Canadian Evidence Act 1998, so Ministers may wish to consult it for guidance.
§ There are further issues regarding the practical implications of placing the burden of proof in the hands of the opposing party. Clearly, one would not wish disputes of competence to become a strategic tool, exploited by the party opposing the use of the vulnerable witness to the detriment of that witness. Notwithstanding these concerns, I would welcome clarification of the Home Office's position. Amendment No. 128 is consequential for grammatical reasons on Amendment No. 127.
§ Amendment No. 129 reiterates the point I made earlier in connection with Clause 51. An example has been drawn to my attention which highlights my concern over the way in which assumptions of competence to give sworn evidence are contested. A 79 young man with learning disabilities was a prosecution witness in an assault case. As a test of competence, he was asked whether he ever told lies. He reflected for a moment and said, "Yes, sometimes." This was capitalised on by the defence, who argued that he was, by his own admission, an unreliable witness. Asked afterwards what he meant, he said that he sometimes told lies when he was asked whether he liked a dress, or a speech, or somebody's friends. He said that he would always tell the truth about real things and he was regarded as extremely honest in his sheltered employment and his family life. He was, in effect, honest and able to communicate, yet his credibility as a reliable witness was challenged and upheld on the basis of inappropriate questioning.
§ I believe that two things are vital: first, that this clause is amended so that competence is assumed from the outset; and, secondly, that the rules of court are developed regarding the type of questions permitted to determine capacity to give evidence under oath. Amendment No. 130 is a consequential grammatical correction. I beg to move.
§ Lord Williams of Mostyn
This is a very important chapter in the Bill. Clause 50(1) states plainlyAt every stage in criminal proceedings all persons are (whatever their age) competent to give evidence".That is extremely important. We do not want competence and the ability to appreciate the significance of the oath investigated unnecessarily. Therefore, the issue will arise only if the court or a party to the proceedings has real doubts about the witness's abilities. After all, one of the purposes of the Bill is to enable witnesses to give evidence in court whose competence or ability to give sworn evidence might be in doubt under current arrangements, which have been seriously criticised.
In every case, the question of competence will arise only if the court or a party to the proceedings questions it. In every case, the decision is on the balance of probabilities. Only the court will be able to question the witness. That is because witnesses for whom the question arises are likely to be vulnerable and because competency and taking the oath are serious issues.
We believe that once a challenge is made it is only right that the party calling the witness should be the one to show the court why the witness should give evidence to the court or why that evidence should not be given unsworn. The court has to come to a conclusion on the balance that I indicated. The court needs to be satisfied about the competence of the witness. In order to do that, the court needs the assistance of the party calling the witness. That party, after all, is likely to know the witness best.
The determination about competence and therefore admissibility may well be made at the same time as the consideration of an application for a special measures direction since those special measures may be critical to the test of whether or not a witness understands questions and can give understandable answers.
We have thought about this matter quite carefully. I believe that the way we have drafted matters is correct
§ 8 p.m.
§ Lord Swinfen
I listened to what the Minister said. I should like to read it and discuss it with my noble friend Lord Rix before the next stage of the Bill. I still have a feeling that we are on opposite sides of the fence on this matter and I wish to reserve my right to return to it.
§ Lord Williams of Mostyn
If at any stage either my officials or I can be of assistance, then we are only too willing to meet the noble Lord and the noble Lord, Lord Rix, at a time convenient for them. The noble Lord is right. We are probably opposed. However, I am more than happy to make that invitation.
§ Lord Swinfen
Invitations from the Minister are always very welcome. I shall convey the invitation to my noble friend Lord Rix and it may well be that it will be taken up. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 128 not moved.]
§ Clause 51 agreed to.
§ Clause 52 [Determining whether witness to be sworn]:
§ [Amendments Nos. 129 and 130 not moved.]
§ Clause 52 agreed to.
§ Clauses 53 and 54 agreed to.
§ Clause 55 [Inferences from silence not permissible where no prior access to legal advice]:
§ Lord Thomas of Gresford moved Amendment No. 131:
§ Page 39, line 15, after second ("to") insert (", and during, ").
§ The noble Lord said: I understand that Chapter VI arises out of the judgment of the European Court. This is a probing amendment. I shall be grateful if the Minister will indicate that the opportunity to consult a solicitor should continue during the period of questioning, charging or being informed and so on. I beg to move.
§ Lord Williams of Mostyn
I do not believe that this amendment would add anything of substance to the current safeguards contained in the Police and Criminal Evidence Act together with the existing codes of practice. Clause 55 provides that inferences from silence are not permissible where the accused has not been allowed an opportunity to consult a solicitor prior to interview at the police station.
The noble Lord may be concerned that a suspect, having been given the opportunity to consult a solicitor, may be denied further access to legal advice during interview at the police station.
Section 58 of the Police and Criminal Evidence Act 1984 makes it clear that, where a person has been arrested and held in custody and has been given the opportunity to obtain legal advice, he is entitled to contact a solicitor privately or at any time if he requests to do so.
81 PACE Code C dealing with the detention, treatment and questioning of persons by police officers states that when a person has been permitted to consult a solicitor he must be allowed to be present while the suspect is interviewed. Once the interview has begun, the solicitor may be required to leave only if his conduct is so unprofessional that the interview cannot be conducted because of that behaviour. In those circumstances, the code provides also that the suspect should be allowed to consult another solicitor before the interview continues and that solicitor will be given the opportunity to be present at the interview. Therefore, I believe that I have given the noble Lord, Lord Thomas of Gresford, the assurance he seeks.
§ Lord Thomas of Gresford
I am grateful to the Minister for that assurance and clarification. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 132 and 133 not moved.]
§ Clause 55 agreed to.
§ Clauses 56 to 59 agreed to.
§ Clause 60 [General supplementary provisions]:
§ [Amendment No. 134 not moved.]
§ Clause 60 agreed to.
§ Clauses 61 and 62 agreed to.
§ Schedule 3 agreed to.
§ Schedule 4 [Repeals]:
§ [Amendment No. 135 not moved.]
§ Lord Williams of Mostyn moved Amendment No. 136:
§ Page 60, line 47, column 3, leave out from ("Article") to end of line 50 and insert ("22'').
§ On Question, amendment agreed to.
§ Schedule 4, as amended, agreed to.
§ Schedule 5 agreed to.
§ Clause 63 [Short title, commencement and extent]:
§ Lord Williams of Mostyn moved Amendment No. 137:
Page 42, line 38, after ("provisions;") insert—
("( ) the provisions of paragraph 6 of Schedule 5 and paragraph 1 of that Schedule so far as having effect for the purposes of those provisions;").
§ On Question, amendment agreed to.
§ Clause 63, as amended, agreed to.
§ House resumed: Bill reported with amendments.