11 Clause 40, page 29, leave out lines 13 to 16 and insert—
("(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—
that the similarity").
§ Lord Williams of Mostyn
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 11. I shall speak also to Amendments Nos. 12, 13 and 14.
These amendments to Clauses 40 and 41 correct a technical flaw in the amendments which I laid on Report. I am grateful to Ms Vera Baird, who brought the matter to our attention. On Report, I laid an amendment—significantly in response to the speech 1330 made by my noble friend Lady Mallalieu in Committee—to allow the defence to introduce evidence of the complainant's previous sexual behaviour if it was strikingly similar to the complainant's behaviour during the events constituting the alleged offence, or at or about the same time as the alleged offence.
However, having thought about it, I realised that the amendment was defective in that it allowed evidence of previous sexual behaviour to be admitted if it was similar to the complainant's behaviour at or at about the same time as the alleged offence, but not if the: previous behaviour was similar to how the complainant behaved during the alleged offence itself. These amendments are designed to remedy that flaw.
The amendment to Clause 41 completes the effect of the amendment to Clause 40. It also allows the defence to explain or rebut evidence which the prosecution claims relates to the alleged offence, but which the defence considers to be evidence of a complainant's previous sexual behaviour.
That would not have been possible earlier, as only evidence which the prosecution claimed was evidence of previous behaviour could be rebutted under Clause 40(5). Therefore, we wanted to safeguard the interests of the defendant to allow them to rebut all prosecution evidence—if the judge gives leave—as a balance to the greater freedom the prosecution have to introduce evidence of sexual behaviour.
The amendments to Clause 42 require judges and magistrates to give reasons for their decisions on admitting, or refusing to admit, sexual behaviour evidence. We received several representations and we thought that the points made were sensible and important. Therefore, we introduced these amendments.
Clause 40 introduces a tight framework setting down what is relevant and what is not. We wished to get this framework right, in the interests of a fair trial for the defendant. During our debate on Report, we heard several persuasive speeches about the need for strikingly similar provision so that in extreme circumstances the defendant can support his claim that the complainant consented to the act constituting the alleged offence by reference to previous behaviour. The provision, in what will be—if it is agreed—Section 41(3)(c), is very narrowly drawn. Only information that cannot reasonably be explained as a coincidence can be admitted. All evidence would, therefore, have to be very unusual to be admitted.
Commonplace events such as previous one-night stands, or having sex with someone of the same race, or in a car, would be inadmissible under this subsection, because they could reasonably be considered a coincidence. The Romeo and Juliet scene was the example offered by the noble Baroness, Lady Mallalieu, but even that example would only be admissible if it were very similar to defence evidence.
The prosecution are not subject to the same restrictions as the defence under this clause. Unless the defence can challenge all prosecution evidence, through the provision in subsection (5), they may not be able to introduce evidence to explain or rebut certain pieces of prosecution evidence. We must allow 1331 the defence to suggest, where necessary to their case, that evidence the prosecution claim relates to the alleged offence—such as bruising, or other injuries—was caused as a result of the complainant's previous sexual behaviour.
One example of the problem with the Bill as currently drafted is that, if a defendant in a rape case was running defence of mistaken identity—that he did not have sex with the complainant at all—he could not rebut the prosecution's claim that the complainant did not consent, because he would not be arguing that she did consent. However, the prosecution might have introduced evidence to support the complainant's lack of consent, such as bruising or cuts. The defendant could not challenge that under the Bill as currently drafted. But if the defendant knew that the bruising had been caused by the complainant's previous sexual behaviour, he should be able to introduce evidence showing that. Otherwise, the jury might be misled.
That is the thinking behind the amendments, which I commend to your Lordships.
§ Moved, That the House do agree with the Commons in their Amendment No. 11.—(Lord Williams of Mostyn.)
§ Lord Desai
My Lords, I welcome the amendments. They do not go as far as I wanted, because I still think that the whole problem of sexual history that a woman has sometimes to recount deters women from bringing cases to trial. However, I welcome the narrowing of the criteria under which sexual history can be admitted.
§ Lord Cope of Berkeley
My Lords, I also welcome the provisions as now drafted. We discussed them for a long time in Committee and on Report and Third Reading. They were modified in your Lordships' House and subsequently in the other place. It is difficult to get the wording precisely right, but I believe that it has been improved and that the changes that will be introduced by the Bill as a result are desirable.
§ On Question, amendment agreed to.