Youth Justice and Criminal Evidence Bill [H.L.]

HL Deb 23 March 1999 vol 598 cc1183-237

5.33 p.m.

Proceedings after Third Reading resumed on Clause 1.

Lord Windlesham moved Amendment No. 3:

Page 2, line 2, leave out ("sentence") and insert ("order").

The noble Lord said: My Lords, this amendment is consequential on Amendment No. 2 which was decided on a Division shortly before the Statement. I beg to move.

On Question, amendment agreed to.

Lord Windlesham moved Amendment No. 4:

Page 2, line 2, leave out ("for the offence by ordering hirn").

On Question, amendment agreed to.

Clause 5 [Making of referral orders: attendance of parents etc.]:

Lord Williams of Mostyn moved Amendment No. 5:

Page 5, line 10, leave out subsection (3) and insert— ("(3) The court shall not under this section make an order requiring a person to attend meetings of the youth offender panel—

1. (a) if the court is satisfied that it would be unreasonable to do so, or
2. (b) to an extent which the court is satisfied would be unreasonable. ")

The noble Lord said: My Lords, this group contains Amendments Nos. 5 to 9 and Amendment No. 41. They are all relatively minor amendments and have been tabled to correct slight drafting oversights. By these amendments, we also intend to give sufficient flexibility to the court and the panel in tackling offending behaviour.

Amendments Nos. 5, 6 and 7 seek to ensure maximum flexibility in dealing with parental attendance. A key objective is to ensure that parents are fully involved. Your Lordships have already agreed amendments to ensure that more than one parent or guardian may be required to attend panel meetings. However, there will be some circumstances where it is not possible or appropriate for a parent or guardian to attend. The Bill, as drafted, already acknowledges that. Previous amendments to the clause have left that provision sitting a little awkwardly, so we have revised the formulation to sit more comfortably—I hope that your Lordships agree—and to make clearer the range of considerations that the court may take into account. That may include whether or not a parent was involved in the commission of a crime, the health and domestic arrangements of the parents, and the relationship between those the court proposes to require to attend with the offender and with each other.

On Report, I indicated that I would review the element of Clause 5 relating to those cases in which it will be appropriate for a court to require a local authority representative to attend panel meetings. Our original formulation followed Section 34A of the Children and Young Persons Act 1933. On reflection, I am concerned that that may be unduly rigid, restricting, as it may, the role of the local authority to those cases where it has parental responsibility following a care or emergency protection order. I think that it is preferable to use the wider formulation of "looked after" cases, as they are described in the Children Act 1989. That is a broader category, and will include those cases where a young offender is accommodated by the local authority, perhaps temporarily during a family crisis, but where the local authority has not acquired parental responsibility.

I can assure your Lordships that that will not prevent the full involvement of parents in appropriate cases, since the courts already have the power to require more than one appropriate adult to attend panel meetings. That would mean that both the parents or guardians and a local authority representative could be required to attend if the court thinks it appropriate.

On Report, the noble Lord, Lord Cope of Berkeley, tabled an amendment which sought to remove the words "or otherwise" from the provision which precludes the inclusion of electronic monitoring in the contract. I said that I thought that that amendment was technically defective, but that I would look at it again. The phrase "or otherwise" was intended as a catch-all. The noble Lord correctly identified that there is a danger that it might catch more than we intended. Therefore, Amendments Nos. 8 and 9 will reword the subsection, omitting the words "or otherwise", and I hope that they fully meet the point most helpfully raised by the noble Lord.

Finally, Amendment No. 41 seeks to ensure that arrangements in Schedule 1 for bringing the offender before the court for breach proceedings will apply in Scotland, so that a young offender who fails to comply and crosses the Border may be brought back to court to face the consequences. That rectifies a drafting oversight and I hope that your Lordships will accept it. I beg to move.

Lord Windlesham

My Lords, this group of amendments, like those to Clause 1 which we debated before the Statement, relates to another mandatory requirement. We should not let this clause go without drawing attention to that. This time, I refer to attendance by parents, guardians or representatives of local authorities at the meetings of the youth offender panel in those cases where the offender is under the age of 16. Clearly, their supportive role is important and desirable. However, again, does it have to be mandatory?

In this situation, unlike with the making of referral orders which were the subject of the previous debate, a limited discretion is left with the magistrates. Perhaps the Minister could reflect on the fact that there is some discretion here, given that earlier he argued so strongly against the possibility of allowing any discretion. The limited discretion here means that where it would be unreasonable to expect a parent, guardian or representative of a local authority to attend, there is the discretion not to require them to do so.

I note in the Explanatory Notes on page 8 that an example is given of serious ill health. As a ground that seems sensible. I do not know if the Minister is able to give us any further examples of what might pass the test.

I conclude by asking the Minister a specific question. Is it still the case, as indicated on pages 8 and 9 of the Explanatory Notes, that those parents, guardians or representatives who fail to attend a meeting against the order of the court and without good reason, should be brought before the court for contempt?

Lord Cope of Berkeley

My Lords, this is a small group of mainly minor amendments, but nevertheless they have some significance. They are welcome. I particularly welcome Amendments Nos. 8 and 9 as they arose from a suggestion of mine.

With regard to the question of compulsion, I say to my noble friend Lord Windlesham that it is a different matter for the court to be able to compel the parents or other people in loco parentis to attend from requiring the magistrates to carry out a specific course of action which is what we were discussing earlier. I believe it is a good thing for parents to be obliged to attend, subject to the court having discretion in the cases set out in the amendment.

Lord Williams of Mostyn

My Lords, the noble Lord, Lord Windlesham, was tempting me to re-traverse the question of discretion and perhaps I should note his observations, which I appreciate were courteously made.

The question was put involving a parent who was perhaps suffering from ill health. The examples I gave included one where perhaps a parent had been involved in the commission of the crime. Attendance in that case would be inappropriate. The domestic arrangements may simply make it impossible for the parents to attend. For instance, one could imagine circumstances where one parent was extremely immobile and the other was simply not able to go to the court.

Though I will research this more carefully, if a court makes a referral order and an order requiring the appropriate person to attend and that person does not attend, then on the face of it the sanction of contempt would be available. I shall research that more carefully. I am reasonably satisfied in my own mind, but if I am wrong I will write to the noble Lord, if I may, and as always put a copy of the letter in the Library.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 6 and 7:

Page 5, line 22, leave out from ("is") to end of line 28 and insert ("(within the meaning of the Children Act 1989) a child who is looked after by a local authority. ").

Page 5, leave out lines 37 and 38.

The noble Lord said: My Lords, with the leave of the House, I shall move Amendments Nos. 6 and 7 en bloc.

On Question, amendments agreed to.

Clause 8 [First meeting: agreement of contract with offender]:

Lord Williams of Mostyn moved Amendments Nos. 8 and 9:

Page 8, line 5, after first ("the") insert ("electronic").

Page 8, line 5, leave out ("(electronically or otherwise)").

The noble Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 8 and 9 en bloc. I beg to move.

On Question, amendments agreed to.

Clause 24 [Evidence given in private]:

Lord Williams of Mostyn moved Amendment No. 10:

Page 19, leave out lines 6 and 7 and insert— ("( ) A special measures direction providing for representatives of news gathering or reporting organisations to be so excluded shall be expressed not to apply to one named person who—

1. (a) is a representative of such an organisation, and
2. (b) has been nominated for the purpose by one or more such organisations,

unless it appears to the court that no such nomination has been made. ").

The noble Lord said: My Lords, in moving Amendment No. 10 I shall speak also to Amendments Nos. 11 to 13. The first three amendments provide that if the court excludes the news media from the court, one representative must be allowed to remain and the media will have to nominate that representative.

We discussed these matters on earlier occasions. The point of Clause 24 is to allow the court to exclude certain individuals who may be upsetting a witness for either the prosecution or the defence; and to allow the court to exclude as many observers as possible so that witnesses who need privacy to encourage them to give their evidence coherently, completely and accurately, may have it

On earlier occasions I indicated, particularly in answer to the noble Lord, Lord Cope, and the noble Viscount, Lord Astor, that I was in continuing discussions with the media. Having listened carefully to what the noble Lord and the representative said, we felt that we could balance that second aim better against the role of the press as representatives of the public. I stress that the press have an extremely important role to play. They are the ones able to disseminate what happens in courts, where the public may not be present, to a wider public.

Therefore my amendments require the court to allow one member of the media to remain, even if all other representatives of the news media are excluded. The court may wish to set a limit on numbers above that, and will be free to do so if—and only if—the justification provided by the clause exists for such a direction. We believe such situations will rarely arise. It will hardly ever be necessary to clear the court so completely that all but one member of the press is excluded. But there might be some circumstances where open justice can be safeguarded if only one member of the press is present.

We require the media to choose their nominee among themselves. It is better for the media to come to that conclusion. I believe, following our discussions, that they will be able to come to a consensus as to how they will nominate such a representative. If they fail to reach consensus and nominate more than one, the court will have to make the choice. It is therefore in the media's interests to choose their own representative rather than have an imposed choice.

Amendment No. 13 ensures that representatives of the broadcast media are covered by the new provisions, so that a broadcast journalist could be allowed to remain and a broadcast organisation could nominate a media representative. With the old wording of "newspapers or news agencies" that might not have been possible. Your Lordships will recall that on Report we agreed a similar amendment to the description used in the Children and Young Persons Act 1933 by agreeing Amendment No. 111B to paragraph 2 of Schedule 4. I beg to move.

Lord Cope of Berkeley

My Lords, this is a helpful response to our earlier discussions. It is also helpful that the Minister emphasised the rarity with which he believes it will be necessary to use these provisions.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 11 to 13:

Page 19, line 8, leave out (". however, ").

Page 19, line 15, leave out subsection (4).

Page 19, line 19, leave out ("newspapers or news agencies)") and insert ("news gathering or reporting organisations)").

The noble Lord said: My Lords, with the leave of the House I shall move these amendments en bloc. I beg to move.

On Question, amendments agreed to.

Clause 27 [Video recorded cross-examination or re-examination]:

Lord Williams of Mostyn moved Amendment No. 14:

Page 21, line 42, at end insert (", or (b) that for any other reason it is in the interests of justice to give the further direction. ").

The noble Lord said: My Lords, this amendment stands alone and follows an undertaking I gave on Report following an amendment tabled by the noble Viscount, Lord Colville, to Clause 27. I said that I would consider whether an "interests of justice" test was necessary to allow courts to direct that video-recorded cross-examination could be reopened in certain circumstances other than when new issues came up between cross-examination and trial that ware outside the control of the cross-examining party.

I hope that repeated cross-examinations will be rare. The kind of witness likely to be cross-examined on video before trial will be extremely vulnerable and repeated cross-examinations can be extremely distressing. Pre-trial video cross-examination should normally be the only cross-examination. Cross-examining parties will therefore be expected to exercise reasonable diligence to ensure that they cross-examine the witness on all relevant issues the first time round. Then, if something else comes up between that cross-examination and trial (whether through disclosure or in other ways) and they could not with reasonable diligence have ascertained those matters at the time of the original recording, they would be able to cross-examine on the new issue under the existing provisions in subsection (6).

Having thought about the noble Viscount's helpful contribution, I recognise that it is important not to compromise the interests of justice by preventing cross-examination of witnesses on important issues. The amendment therefore ensures that whenever it is in the interests of justice to allow further cross-examination, the judge will be able to allow it. I hope that the new provision will be relied on only occasionally, but it is a necessary safeguard to avoid unjust convictions resulting from witnesses not having been cross-examined on relevant issues at trial. I beg to move.

On Question, amendment agreed to.

Clause 33 [Complainants in proceedings for sexual offences]:

Lord Ackner moved Amendment No. 15:

Page 24, line 29, at end insert— ("except with leave of the judge who shall give leave if, and only if, he is satisfied that it would be unfair to the defendant not to be at liberty so to cross-examine. ").

The noble and learned Lord said: My Lords, Clause 33 is in absolute terms. It is as well to get it on the record straightaway. It is quite short. It states, No person charged with a sexual offence"— I interpose to say it is not limited to rape, but any sexual offence— may in any criminal proceedings cross-examine in person a witness who is the complainant, either—

1. (a) in connection with that offence, or
2. (b) in connection with any other offence (of whatever nature) with which that person is charged in the proceedings".

All I seek to do is to add the proviso at the end which reads, except with leave of the judge who shall give leave if, and only if, he is satisfied that it would be unfair to the defendant not to be at liberty so to cross-examine". That is not injecting a discretion; that is requiring the judge to apply his mind to the facts and to reach a judgment as to whether it would be unfair to the defendant not to be at liberty so to cross-examine. If he reaches that decision, that is a judgment which can be appealed against, as was pointed out when this matter was discussed on the second day of Report.

The well known aphorism "hard cases make bad law" has been referred to recently in relation to the Lawrence Inquiry. There have been suggestions proposed of an unexpected kind and the initial willingness to adopt all that was in Lawrence has given way to a more careful evaluation and assessment because of the danger that hard cases make bad law.

The reason for this amendment has really arisen out of two high profile cases, both of which occurred some two years ago. One was the case of Ralston Edwards and that was followed, almost by infection, by Milton Brown. In those cases the defendant in person abused his right of cross-examination. This gave rise to the necessity for ground rules to be laid down by the Court of Appeal, which was done by the Court of Appeal, presided over by the Lord Chief Justice, in extensive terms. However, I think I need quote only this paragraph, Judges do not lack power to protect witnesses and control questioning. The trial judge is the master of proceedings in his court. He is not obliged to give an unrepresented defendant his head to ask whatever questions at whatever length the defendant wishes. In a case such as the present it will often be desirable before any question is asked by the defendant of the complainant in cross-examination for the trial judge to discuss the course of the proceedings with the defendant in the absence of the jury. The judge can then elicit the general nature of the defence and identify the specific points in the complainant's evidence with which the defendant takes issue and any points he wishes to put to her. If the defendant proposes to call witnesses in his own defence the substance of their evidence can be elicited so that the complainant's observations on it may, so far as relevant, be invited. It will almost always be desirable in the first instance to allow a defendant to put questions to a complainant but it should be made clear in advance that the defendant will be required, having put a point, to move on and if he fails to do so the judge should intervene and secure compliance. If the defendant proves unable or unwilling to comply with the judge's instructions the judge should if necessary, in order to save the complainant from avoidable distress, stop further questioning by the defendant or take over the questioning of the complainant himself. If the defendant seeks by his address, bearing, manner or questions to dominate, intimidate or humiliate the complainant, or if it is reasonably apprehended that he will seek to do so, the judge should not hesitate to order the erection of a screen in addition to controlling questioning in the way we have indicated". So the matter has been put clearly and fully by the Court of Appeal as to the judge's powers. Interestingly enough, while the first case I referred to was followed by the second case in a copycat type of evolution, none has occurred since the decision in May last year which I have just quoted. Therefore there is no need to feel any present anxiety.

I am not at all satisfied—even though I am sure the noble Lord who is our in-house expert on European law will tell us the contrary—that the embargo which is placed on cross-examining by the defendant in person does not go contrary to the provisions of the European convention. There has been no direct decision on it in which our system, with its great emphasis and reliance on cross-examination—our adversarial system—has been tested. But be that as it were, I ask your Lordships to bear in mind the wise words of the late Lord Lowry, whose memorial service a number of us attended yesterday, when he said in the debate in 1998 on this subject, If Parliament introduces the proposed restriction it will be saying, 'You will no longer have a choice of ways of being defended. You must accept counsel even if you conduct your own case'. That statement would reduce the defendant's minimum rights in Article 6, paragraph 3. Even if we are not offending against the convention, why introduce a unique restriction in one type of case just because some trials, and in particular one trial, are not sufficiently controlled by the trial judge? Seminars with advice as to how to conduct a trial are at least as important as seminars on sentencing, and the problem can be easily taken care of". I invite your Lordships to bear in mind that there may be a number of reasons why a defendant wishes to cross-examine in person. The majority of cases nowadays are what are known as "date rapes", which are allegations of rape between a complainant and a defendant who are husband and wife, or live together, or have known each other for years on intimate terms, and the like. It is by no means being idiosyncratic that the defendant insists on cross-examining. He knows the position intimately and his questions may be much more effective.

I ask your Lordships to take the view that this is an unnecessary, strong reaction to a couple of high-profile cases which have not repeated themselves. I beg to move.

6 p.m.

Earl Russell

My Lords, we had an excellent discussion of this issue in Committee, a discussion that was somewhat truncated by the hour on Report. There are good principles on both sides of this argument. In Committee, the noble and learned Lord, Lord Bingham of Cornhill, said that miscarriages of justice are to be prevented "at all costs". It was argued on the other side that there is a very considerable problem of access to justice. Even one case, let alone two, sufficiently highly publicised, as they have been, obviously has a deterrent effect on the bringing forward of complaints. I think it was the noble Baroness, Lady Kennedy of The Shaws, who said that it was a case of the interests of justice and access to justice.

We have to consider not only which of these is the more terrible thing. If that was the only question, then the line taken by the noble and learned Lord, Lord Ackner, might possibly prevail. We have to consider also which is the more probable. I am as yet very far from convinced that not being able to cross-examine in person is likely to diminish the accused's chances of acquittal. If members of the Criminal Bar believe that employing the services of a competently qualified advocate makes conviction more likely, then I believe they sell themselves short. The kind of person who might want to conduct his own defence is very likely also to be the kind of person who, by doing it in a clumsy and possibly provocative way, may make an unfortunate impression on the jury and may therefore make his conviction more likely. I am very far from convinced that it is in the interests of the accused to have this facility. Were I to accept the amendment of the noble and learned Lord, that is a point on which I would need to be convinced.

I listened with considerable care to what the noble and learned Lord said about cases where there is a previous relationship between the parties. In a sense—and only a sense—I will grant his point that in these cases the potential cross-examinant knows what happened. In any matter of this kind, recollection is selective. Each party will remember some part of what happened and have a convenient or comfortable amnesia on some of the others. There will also be an inevitable element both of amnesia and of recrimination in the cross-examination. I would be inclined to think that the cases that the noble and learned Lord invokes are precisely those in which the accused should be least encouraged to exercise any right of cross-examination.

Perhaps I may return to the precise words of the noble and learned Lord's amendment, which invokes cases where it is in the interests of justice for the accused to have this right. I cannot at present imagine the kind of case in which it would be in the interests of justice to give the accused this right. I hope that the noble and learned Lord, when he replies, will enlighten me.

Perhaps I may touch on a point made by the noble Baroness, Lady Mallalieu, in Committee.

Lord Ackner

My Lords, I am sorry to interrupt the noble Earl, but the words which I have used in the amendment are, that it would be unfair to the defendant not to be at liberty so to cross-examine". Those words are taken from the current Act which deals with unfairness where evidence which the defendant seeks to put in on the prior sexual activity of the complainant is excluded. So it is a philosophy which is found elsewhere in the legislation on this subject.

Earl Russell

My Lords, I am most grateful to the noble and learned Lord for the correction and I apologise to the House for the error. I have the paper here and I am able to look at it.

However, the acceptance of the philosophy does not answer the point about its relevance. I cannot envisage in what type of case this philosophy, however acceptable, would be relevant to the point at issue. It is that point on which I should like to be enlightened.

Perhaps I might briefly return to the point made by the noble Baroness, Lady Mallalieu. I quote from memory and, again, I hope that she will put me right if I misquote her. She said that women as a class are not to be treated as suffering from any disabilities. I take her point entirely and I agree with it. That is why I hope that if the Bill goes forward as it is it will deal equally with victims of male rape and female rape. What is in common is the trauma and not the gender, and the Bill accepts that point.

Baroness Mallalieu

My Lords, I rise to support this amendment. I have reminded myself of the lengthy debate that we had on this issue on 1st February in Committee, and in particular of the reasons given by the Minister for rejecting the proposed changes. In that debate he did not seek to argue that abuses of the kind that occurred in the two well-publicised cases which led ultimately to the Court of Appeal's judgment had continued since that judgment in May 1998. Indeed, he accepts that that judgment appears to have cured the problem by giving judges the clearest indication of what to do in these cases and confidence that robustness will be supported by the Court of Appeal. So there has been no repetition and there have been no copy-cat cases.

The Minister said that people who have been attacked are deterred from coming forward to give evidence because they fear that they may be cross-examined by their attacker in the way that the popular press reported in those two cases. He added that withdrawal of a defendant's right to conduct his own case had caused no difficulties in respect of children. What he is therefore proposing by this clause is legislation to correct a public misconception. I am very much in favour of correcting misconceptions and misunderstandings, but I do not believe that it is best done by withdrawing an important right from the defence; nor am I confident that by taking such a step the object which both he and I wish to achieve will be achieved significantly or at all.

The reasons why those who are attacked do not come forward are no doubt many and complex. Many do not want to go through the ordeal of re-living the experience; they want to put it behind them and they want to forget, especially as the trial will inevitably be delayed for some time. They may not want to see the defendant face to face; they may not have told the truth about some aspects of the case and they fear that they may be found out; or they are afraid that they may be asked difficult questions and tied up in knots by a clever lawyer. But, above all, time and time again the reason for not coming forward—one has heard it over and over—is that they fear that they will not be believed. The Bill contains means which will help in some important respects—in relation to delays; in relation to screens; and in relation to the extension of the video link. But there are some things that it is not possible to exclude. When anyone makes an allegation of serious crime, sexual or otherwise, especially when the consequence for the person accused is loss of liberty, often for a considerable period, the accused must retain the right to challenge and explore the evidence fairly and, where necessary, firmly, in relation to the relevant issues. That does not mean bullying, embarrassing or insulting the witness'. All those are things that the judge has ample power to prevent.

With child witnesses there are, I accept, good reasons to restrain the right of a defendant to do that himself. A child is always at a disadvantage. By reason of his age, inevitably he will be inexperienced; he is probably inarticulate; he is more easily frightened than an adult, and more easily intimidated. For very good reasons, children are treated differently, whether they are defendants or witnesses, and rightly so. They need special protection. But to apply a blanket ban to all sexual cases, as this clause currently does, is to ignore the wishes not merely of the defendant but also of the complainant. It is ironic that many women's groups say that they would prefer to be cross-examined by an untrained and less effective defendant than by an experienced lawyer.

The present clause may well mean that a defendant is able to appeal to a jury on the ground that he has been unable to present his case as he wished. The noble Lord asked for examples of cases where it might be appropriate for someone to cross-examine in such a case. I can only say, as I did at an earlier stage of the Bill's passage, that I have had personal experience of such a case. I am quite satisfied that no lawyer would have obtained the admission that the defendant himself, cross-examining very briefly and courteously, did from someone with whom he had lived and who had made an allegation following an argument which she then admitted to his face was false.

An advocate who comes into a case, as the Bill proposes, solely for the evidence of one witness has a difficult task to perform. If the defendant who has to instruct him either fails to do so properly—in which case his task is impossible—or tries to do so but does so inadequately, which is highly likely, the result, whatever his abilities, will be unsatisfactory too. If a jury feels that a defendant is not being allowed to present his case fully as he wishes, it is likely to try to redress what it sees as unfairness by its verdict. The procedure that is proposed under this clause may well have the appearance of unfairness to an accused and result in verdicts which will reflect that and not necessarily the evidence.

The Government are rightly worried about acquittal rates in sexual cases, and particularly rape cases. They would do well—indeed, they would do better—to examine the real causes of those acquittals: cases taken to trial on evidence that is not of sufficient strength to sustain a conviction but which, because a sexual offence is concerned and there is a fear of criticism, are pursued instead of being dropped; serious cases of that nature prosecuted by very junior counsel appointed by the Crown Prosecution Service; the knowledge of juries that a rape conviction will in every case result in a long prison sentence whatever the circumstances and degree of seriousness in their view, and when they believe that such a sentence may not be merited on the particular facts of the case that they are trying. I urge the House to consider the amendment proposed by the noble and learned Lord, Lord Ackner, with favour. I hope that the Government will do so too.

6.15 p.m.

Baroness Lockwood

My Lords, the noble and learned Lord, Lord Ackner, said in moving the amendment that Clause 33 was written in absolute terms. I hope that my noble friend the Minister will resist the amendment, because in my view the law needs to be stated in absolute terms.

The question of rape is a very difficult one. It is different from all other kinds of crime. The victim of rape, as well as being a victim, often feels some sense of guilt herself. It is important that anyone who has been subjected to a crime of that kind can feel satisfied that the law will protect her and will give her an opportunity to present her case without intimidation and without fear of feeling re-tried and having once again to go through the ordeal of the rape.

The noble and learned Lord referred to the ground rules now laid down by the Court of Appeal. He said that there has been no occurrence of this kind of trial and cross-examination since May 1998. That is less than a year ago, and we do not know whether there will be similar cases in future.

Noble and learned Lords have the benefit of looking at cases from a wide perspective. However, not all their colleagues in charge of cases approach a case with the same impartiality and broad vision and breadth of experience. I should not like to leave this question to the discretion of the judge.

I accept that the noble and learned Lord has gone some way to meeting the criticisms that were made at an earlier stage. However, in an area of this kind, which is so sensitive and difficult, if there is to be a balance in any way it should be towards the victim, not towards the accused.

The Bill as drafted provides the opportunity for the accused to receive a fair trial. He may not have the right to cross-examine. But that is a small price to pay in order to give women the sense of security to come forward and present their case in a way that they would not be prepared to do if the law were less absolute than is now intended by the Bill. Were that to happen, we should not have the same security as we shall have under the Bill as drafted, and there will not be the same sense of fairness to victims of rape. I therefore hope that my noble friend will resist this amendment.

Lord Monson

My Lords, before the noble Baroness sits down, she spoke about the rights of the victim versus the rights of the accused? Should she not have said "the rights of the accuser" versus the rights of the accused? The accuser might not necessarily be a victim.

Baroness Lockwood

My Lords, perhaps the noble Lord is right. I meant the balance between the victim of the offence and the defendant who is accused of the offence.

Lord Goodhart

My Lords, on these Benches there are strongly held views on both sides of the matter. We have decided to treat it as a matter of conscience and not to impose a Whip.

I am unable to support the amendment. In saying so, I am fully aware that I am not a criminal lawyer. I do not have the experience of the noble Baroness, Lady Mallalieu, nor that of my noble friend Lord Thomas of Gresford. However, I am encouraged by the fact that an extremely powerful speech was made at the Committee stage by the noble Baroness, Lady Kennedy of The Shaws. I agreed with everything she said. That applies also to the remarks of my noble friends Lord Russell and Lord Lester.

I start from the basic principle that, first, it is wrong for the guilty to go free; secondly, it is wrong for the innocent to be convicted, and thirdly, as between those two, the conviction of the innocent is much the greater wrong. Clause 33 must be tested against those principles. Will it lead to the conviction of the innocent? I believe the answer to that is unequivocally no. No one would be behaving rationally if they chose to defend themselves when accused of a serious sexual offence, even if they were allowed to cross-examine the complainant. That includes cases of date rape as much as any other kind of rape.

The example given by the noble Baroness, Lady Mallalieu, is based on an assumption which can only be subjective. It is that the complainant in the case would not have made the same confession to a lawyer as she did to the defendant. There is no way in which that can be shown to be true. Indeed, it seems to me inherently unlikely. I cannot imagine circumstances in which an innocent defendant, given the opportunity to be represented, would choose not to instruct an advocate or would refuse to co-operate with an advocate instructed under Clause 37 to cross-examine on his behalf. I believe that that decision would be so irrational as to indicate that the accused needed protection from himself. Therefore, I believe that Clause 33 will not lead to the conviction of the innocent in a single case. The amendment is not necessary.

Will Clause 33 as it stands lead to more frequent conviction of the guilty? I believe that it may well do so. It is not certain, but there is a real possibility. The percentage of rapes that are reported and prosecuted is notoriously low. One reason is the reluctance of victims to face the trauma of giving evidence in court. That fear is made much worse by the possibility of being cross-examined by the defendant in person. It is true that in a few cases that has happened. It is also true that the Criminal Division of the Court of Appeal, through the noble and learned Lord the Lord Chief Justice, has given judges greater freedom than perhaps they thought they had previously to control any abuse of the right to cross-examination. Despite that, I believe that the mere possibility of cross-examination by the accused, however remote, is likely to deter women from reporting sex offences and giving evidence. The trouble with the amendment is that it opens up that possibility in theory. In practice it will never happen. It is impossible to imagine a case in which a judge will think that the interests of justice require the accused to be given the right to defend in person rather than to be defended by an advocate. Nevertheless, the amendment opens up that possibility. The amendment serves no useful purpose and may do harm. I propose to vote against it.

Lord Lester of Heme Hill

My Lords, I had not intended to participate in the debate. The noble and learned Lord, Lord Ackner, tempted me to do so by, I think, referring to me—I am sure it was not meant sarcastically—as some kind of guru of the European human rights convention. The noble and learned Lord is not noted for sarcasm. I am sure that he did not mean to be sarcastic. He knows that I am not a guru of anything at all, except in my mother's eyes. In no other eyes could I be regarded as a guru.

Lord Ackner

My Lords, I did not use; the word "guru". What I said was intended to be a compliment. I think that when the noble Lord reads Hansard he will find that that is how it reads.

Lord Thomas of Gresford

My Lords, I believe the words in the Independent this morning were "the venerable human rights lawyer".

Lord Lester of Herne Hill

My Lords, I feel rather old as I take part in this debate. Venerable I am not. And a guru? Only to my mother. I cannot claim to be more expert than anyone else in the area since I do not practise in the criminal field. I wish to respond to the temptation to say a word or two about why Clause 33 is not absolute and why it accords perfectly with the contents of the human rights convention. It is not absolute because all it does is forbid the direct personal cross-examination of the accuser by the accused. The Bill as a whole guarantees the right to a fair trial which is enshrined in Article 6 of the convention. The European Court of Human Rights, in a case called Croissant v. Germany, made clear that there was no absolute right to cross-examine in person. The convention as a whole represents a fair balance. All the articles, even the absolute prohibitions, have been interpreted as balanced.

What are the other rights that have to be balanced? They are the right not to be subjected to degrading treatment in a trial and the right to respect for personal privacy. I am satisfied that if we are to preserve those competing public interests and rights, they must be balanced by some body. On this occasion, although I deprecate statutes that interfere with judicial discretion where judicial discretion is necessary I believe that Parliament is right to make it clear that there should be no direct personal cross-examination for the reasons I have given. The judges can normally be trusted, but I can think of no circumstances in which it would be permissible, if one is trying to protect personal privacy, avoid degrading treatment and ensure a fair trial, for there to be direct personal cross-examination. That is not the same as saying that there should be no full right of cross-examination by instructing a competent advocate to cross-examine.

This is not an absolutist position; it is a position that fairly balances matters. I am sorry that wise judges have failed in the past to prevent two gross cases of abuse of human rights, the two to which the noble and learned Lord referred. For my part, two are quite enough. It is time to put an end to such cases and to make sure that there is not a third.

The guidelines of the noble and learned Lord the Lord Chief Justice are helpful. However, they give too much latitude—as does the noble and learned Lord's amendment—for a repetition of conduct of that kind. For those reasons, I entirely agree with everyone who has spoken against the amendment.

Lord Richard

My Lords, I have not taken part in any of the proceedings on the Bill although I have listened from time to time to a fair proportion of the discussion. I would find it difficult to support the Government if they were to resist the thrust of the amendment. I shall tell the noble Lord, Lord Lester, why. I have practised at the criminal Bar. I have had the opportunity of appearing in trials which would be caught by this provision. The idea that you can somehow create a proper balance, as he puts it, by imposing an absolute prohibition on the right of the defendant to cross-examine in person is a proposition which I find difficult to understand and even more difficult to accept. What the Government propose here is simply the removal of a right which, at present, exists on the part of the individuals to defend themselves if they so wish and to cross-examine if they so wish. My noble friend Lady Lockwood spoke in very sincere terms, but not in relation to the amendment. The argument seemed almost to be that one should abolish cross-examination altogether in rape trials.

As for the effect on the complainant, one has to take account of the fact that if a defendant wishes to defend himself, why on earth should he not be prepared to defend himself? Once the Court of Appeal, in the person of the Lord Chief Justice—

Lord Lester of Herne Hill

My Lords, I am most grateful to the noble Lord for giving way. Since he asked the question, would he accept that one answers it by saying that it is because it degrades the alleged victim, and therefore should not be permitted?

6.30 p.m.

Lord Richard

My Lords, with great respect, a trial is a trial. The person who is accused of a criminal offence is entitled to a fair trial and in that trial the evidence has to be tested. What this amendment and this discussion is about is the way in which that evidence should be tested in a criminal trial. If a defendant chooses to defend himself—and, with great respect, that has been a great tradition in this country over many centuries—he is entitled to do precisely that. Once you have a Court of Appeal judgment which actually regulates the way in which a defendant can cross-examine—because, as I understand that decision, it gives greater power and firmer guidelines to the trial judge to make sure that the cross-examination proceeds in a proper way—I will just finish this sentence, if I may, and then give way in a moment. What this argument is really about is whether proper cross-examination by a defendant in person should be prohibited. I am bound to say I find that an astonishing proposition. I will now give way.

Earl Russell

My Lords, I am most grateful to the noble Lord, Lord Richard. I entirely accept his proposition that the evidence should be tested, but can he give me one circumstance in which the evidence can be properly tested by the accused and cannot be properly tested by counsel?

Lord Richard

My Lords, I cannot invent an example off the top of my head, but I can think of one possibility where the accused, immediately before cross-examining the complainant, finds that his counsel is either unavailable or that he cannot get on with his counsel and the judge says that the trial has to go on. In those circumstances, is it seriously proposed that the defendant should not be able to cross-examine? I find that a very strange proposition indeed. I could imagine circumstances in which a court would say that it was unfair to a defendant not to be permitted to cross-examine, but at the end of the day this is a fairly simple issue. The simplicity of the issue can be summed up in one sentence as follows. Once the judges are prepared to control the way in which a defendant cross-examines in person, is it right for Parliament to take away his right to do it? I am bound to say that I am not convinced of that. I apologise to my noble friend on the Front Bench for doing what I have not done in the course of all these proceedings before, and that is to express my unease with the proposal that the Government are making. I would find it very hard indeed to support the Government if they were to oppose the amendment put forward by the noble and learned Lord, Lord Ackner.

Lord Thomas of Gresford

My Lords, the noble Baroness, Lady Lockwood, said that rape and sexual offences are very different from other crimes. That is true. However, the difference lies not so much in the harm or hurt that is caused to those who are the victims of crime. What really distinguishes rape in particular from other crimes is that in very many cases, although it can be shown that sexual intercourse has taken place, there is no visible injury and by the nature of things there is no corroboration, because sexual intercourse normally takes place in private.

In many cases—indeed in cases in which I have recently been involved—there is no complaint. The complaint may happen, as in the case to which I referred, some 40 years later. Those are some of the distinguishing features of rape trials which make them rather different from other cases and rather difficult to deal with. What my noble and venerable friends do not entirely understand, but those of us who have spoken who have practised at the criminal Bar do, is the delicate balance of a criminal trial: the dynamics of a criminal trial under an adversarial system.

What it requires is that there be counsel of reasonably equal standing, that the judge be fair and does not intervene, that witnesses be called on either side and be subject to fair cross-examination controlled by the judge, and that after the summing-up the decision is made by a jury. When people go on about the rate of acquittals in rape cases I think they rather tend to forget that it is 12 ordinary people, selected by lot, who actually make the decision. There is not some kind of lawyers' conspiracy as a result of which rape conviction levels are low. It happens because ordinary people, who understand the witnesses who are brought before them and who have common sense on their side, realise that the charges are not made out.

The Government's proposal introduces into this delicate balance of a criminal trial an entirely novel and strange element: that is to say, that a defendant should no longer be entitled to defend himself but should have somebody appointed to do it for him. Once you introduce a person who appears on behalf of a defendant who is reluctant to have him, who perhaps objects to having him and who gives him no proper instructions and who does not fully understand the case he is putting forward, there is a twist put into the whole procedure which will result in injustice. That does not mean to say it will necessarily result in the acquittal of a defendant— it may very well result in his conviction—but it does twist all the procedures that have developed into safeguards for the individual and in the public interest over many centuries. I really have to disagree with my noble friend Lord Goodhart, who sees nothing wrong with this and thinks that it is possible to introduce this new element into a criminal trial in front of a jury without distorting the result.

The arguments that are advanced against this amendment are that cross-examination by the individual defendant may prevent complaints coming forward from people who are truly victims. It may have a deterrent effect and, as the noble Baroness, Lady Mallalieu, put it, this is legislation to correct a misconception. I believe that where the Government fall down on this topic is that they make no attempt to inform the public of what is happening in the criminal justice system. For example, there is no attempt to point out to the public the training that judges undergo, that no judge can sit on a rape case unless he has what is colloquially called "the rape ticket"—that is to say, that the Lord Chancellor's Department has realised that he is of sufficient weight and experience to conduct cases of this sensitivity. Rather do the Government go along with the press and the headlines, and seek by legislation to cut down the discretion and the control of the judiciary, to put a cap upon what they customarily do.

It is rather ironic that this Bill and the amendments that have been brought forward by the noble Lord, Lord Williams of Mostyn, do a great deal to improve the position of the press. The press cannot be challenged. The press has to be supported, and so if the press has headlines which say that rape is rampant and something has to be done about it, then this Government, instead of informing the public about the true situation, take a different view.

In Committee, the noble and learned Lord, Lord Bingham, said that miscarriages of justice must be prevented at all costs. That was challenged by the noble Lord, Lord Williams of Mostyn. He thought that was not necessarily so and that miscarriages of justice should not be prevented at all costs. He thought that there is a balance to be struck which should be in favour of the victim. That is the expression used by the noble Baroness, Lady Lockwood: there has to be a balance in favour of the victim, not the accused. If one looks at the left-hand panel of your Lordships' Chamber one observes the figure of Justice, with the balance evenly held. That is the tradition of this country and of the criminal justice system, which must be preserved at all costs.

The amendment seeks to give to the judge the power to come to an appealable decision on whether it is unfair to the defendant not to allow him to cross-examine. It puts the matter in his hands. At an earlier stage today the noble Lord, Lord Williams, said that those who upheld the role and discretion of judges were deeply conservative. I do not believe that that is true. In the liberal tradition of this country we support judges and oppose the statutory imposition of fetters on their discretion. I support the amendment.

Viscount Brentford

My Lords, it is important to bear in mind that there are two aspects to be considered when debating this amendment. The first is justice in the particular case that is being heard. From all that I have heard from extremely learned counsel and judges I believe that to be fairly evenly balanced on the basis of the Bill as presently drafted. The other aspect that I wish to emphasise is that there is no justice for a woman who has suffered rape but is not prepared to give evidence to lead to a prosecution of the rapist. From my researches a good number of women suffer rape but ask whether there is any danger that they will be brought face to face with their alleged rapists who will then be able to cross-examine them. On the basis of the Bill as presently drafted, the police or solicitor—whoever the woman speaks to—will be able to give the unequivocal answer that there is no possibility of the accused being able to challenge her face to face. That is why I prefer the Bill as drafted without the amendment.

I fully understand the fact that judges are likely to act properly and sensibly. The position is evenly balanced as the Bill is drafted. However, I believe that there will be a lack of justice if the amendment is accepted because some women will not be prepared to give evidence in court against the accused. Therefore, I shall vote against the amendment.

Lord Jacobs

My Lords, I sit among a large number of lawyers, so in the circumstances it is perhaps a little inopportune for a layman to get up to speak. I have listened very carefully to the debate. The main argument in favour of the amendment appears to be that not only must the defendant be given the opportunity to cross-examine but that reliance can be placed on judges not to let matters go too far. However, so far no lawyer has mentioned the difficulties faced by judges. I refer to the example of the two cases in which cross-examination went on for days on end. In those examples the judges were worried, probably rightly, that if they curtailed the cross-examination the matter might go to appeal. It is difficult to decide how far the cross-examination should proceed. All of us sitting here would probably say that one day's cross-examination would be ample. However, under some circumstances it might go on for very much longer than that. For that reason, having heard all of the arguments, on balance I believe that the amendment should be opposed.

6.45 p.m.

Lord Cope of Berkeley

My Lords, this matter was discussed at an earlier stage of the Bill. I shall not attempt to discuss all of the arguments that have been put forward, even if I were capable of so doing. On earlier occasio0ns I have made clear that this is certainly not a party matter but a matter of conscience. In this matter I speak only for myself. Once again the noble and learned Lord, Lord Ackner, has moved an amendment and explained it with his usual clarity. It has been made clear again that this is a difficult issue on which to strike a balance. In practice, the cases that it covers are rare. Few defendants accused of rape conduct their own defence, and usually it is wise not to do so. The few who do conduct their own defence and cross-examine the complainants often prejudice their cases in the eyes of the jury. As the noble and learned Lord informed us, the Court of Appeal has already limited what can be asked and the way in which cross-examination is conducted.

In spite of all that, and although it is a rare occurrence, whether we like it or not this has a very big effect on the public mind. If somehow or other we could persuade the public to listen to and take account of all these debates, conceivably their minds might be changed, but I do not believe that there is any realistic possibility of that at the moment. The possibility of the complainant being cross-examined by the attacker, remote as it may be, and controlled by the rules of the Court of Appeal as it may be, certainly adds to the pressure on the victim against going into the witness box. I say "victim" because here I refer to the genuine complainant. I realise that there are other cases. I am aware from some constituency cases of which I have knowledge, apart from other reports, how difficult it is to persuade genuine victims to be prepared to go into the witness box. Without them the case fails. If those who try to ensure that justice is done can say to someone whom they believe to be a genuine victim, as they could if the Bill were passed without amendment, that the defendant—usually a man—will not be able by law to cross-examine, that is a much more powerful and persuasive argument than to say, as they would have to say otherwise, that it is very unlikely that he will cross-examine but that if he does he will be constrained by the rules of the Court of Appeal. That is not nearly so persuasive an argument to use in these very emotional and difficult cases.

I believe that if the Bill is unamended there will be fewer miscarriages of justice resulting from the failure of the victim to give evidence. One may describe that as lack of access to justice rather than a miscarriage of justice. Whatever way one looks at it, it is certainly a failure of justice. I do not claim that this clause by itself, or that the Bill as a whole with the other provisions relating to screens, video and other forms of protection, will completely end the reluctance of victims to give evidence—there are many other reasons for that reluctance—but I believe that it will help. In that way it will reduce the number of miscarriages of justice. For that reason, and speaking only for myself, I shall vote against the amendment.

Lord Williams of Mostyn

My Lords, we have discussed this matter at some length today. I make no criticism of that because this is an important matter. We have also discussed it at significant length on earlier occasions. Perhaps I may focus for a moment on the terms of the amendment. The noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford, seek to introduce, at page 24, line 29, the entitlement of a judge to give leave for personal cross-examination in rape cases. The criterion that the judge must apply in coming to his judgment is whether he is satisfied that it would be unfair to the defendant not to allow it. There is no reference there to any of the issues which have been spoken of about the anguish caused to genuine complainants.

Several propositions have been put forward which are either inaccurate or unreasonably based. On the last occasion but one the Lord Chief Justice put forward his proposition that one had to prevent miscarriages of justice at all costs. I venture to disagree with that. I give the well known example that in some jurisdictions one cannot achieve a conviction for rape without the evidence of two male witnesses. If one wants to go along the route of "at all costs"—I believe it to be unduly absolutist—one can do so, but I decline to start on that journey. The noble Lord, Lord Thomas of Gresford, said that these were safeguards produced over many centuries. No, my Lords, it was only 100 years ago that a defendant could give evidence in a criminal trial on his own behalf. Over the centuries most defendants were not represented, let alone at public expense.

I do not put these as tendentious points. I simply alert noble Lords that when the argument refers to "over the centuries", occasionally it is important to inform oneself about past history.

Lord Thomas of Gresford

My Lords, surely the Minister will concede that over the centuries a defendant defending himself was entitled to cross-examine.

Lord Williams of Mostyn

My Lords, of course he was entitled to cross-examine, but until 100 years ago he was not entitled to give evidence. I put it as part of the picture that we need to have clearly and accurately in our minds.

My noble friend Lady Mallalieu said that we should be cautious, indeed very careful, about interfering with the right to challenge and explore accusations. It is specifically preserved in the Bill. Provision is made for representation at public expense. Provision is made for the judge to consider warning the jury that the mere fact that an otherwise self-represented defendant was not able to cross-examine a complainant does not derogate from his case or the value of the cross-examination. There is no question of stopping the challenge and exploration of evidence given by the complainant.

My noble friend Lord Richard asked how it could conceivably be right to prevent a defendant cross-examining on his own behalf if he wished. I can deal with that. He also raised the related point of what happens if the lawyer is not available. The position would be exactly the same as occurs now if the lawyer is not available. The judge dealing judicially with the matter will allow an adjournment; and he will allow a proper adjournment because, if he does not do so and insists on an unrepresented defendant continuing, he will find that the conviction will be overturned (rightly) in the Court of Appeal (Criminal Division).

I turn to the fundamental point raised by my noble friend Lord Richard. In our system of criminal justice, how can it be right to stop a man cross-examining in person if he wishes? I can give the answer immediately. That has been the position in our system of criminal jurisprudence for some years past now. If one is charged with the incestuous rape of one's daughter, or any other sexual offence against one's daughter, one is not allowed to cross-examine her in person.

Let me take that example further forward. We have heard the examples given: that a kind, gentle cross-examination may effectively sometimes bring about the immediate withdrawal of the allegations. That is not the scheme we have with children. I have not heard it contended myself, nor seen any evidence of it, that that has brought about a miscarriage of justice. So sometimes— I put it gently—absolutist propositions of a golden time, or on how things were in principle, simply do not bear even cursory examination.

We must recognise— there is abundant material to bring us to that recognition— that many women who are complainants in rape cases will not submit themselves to the further ordeal of the court process. Frequently a woman officer detailed to deal with them has to tell the complainant that there is a prospect of cross-examination in person. If the complainant asks the CPS representative, he or she has to say that there is that prospect. The complainant might say to the woman officer trained in investigation of rape, "But when?". If by some mischance your Lordships support the amendment the answer would be, "If the judge thinks it is unfair to the defendant not to be at liberty to do so". I cannot imagine many women wanting to continue with their complaint on that basis.

It is true that the Milton Brown and Ralston Edwards cases led to guidelines. That does not cure the mischief. The mere prospect that in some circumstances a judge may decide that the position would be unfair to the defendant, and that personal cross-examination can be allowed, will stop women making complaints, in particular, I repeat, when the police officer and the CPS representative have to give the truthful answer, let alone if the woman goes to her solicitor for an independent view, as was pointed out earlier by the noble Viscount, Lord Brentford.

There is no suggestion in the Bill that competent cross-examination can be disqualified. There are safeguards to which I have referred. If the Milton Brown and Ralston Edwards cases were never to occur again, there would still be that significant fear that women would be subjected to a cruel and degrading experience which is forbidden by the European convention.

I do not wish to join unnecessarily in the general debate between the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Lester of Heme Hill. But occasionally your Lordships— not myself, I think— are guilty of quotation of previous excerpts from Hansard. I refer to col. 1400 of the Official Report of 1st February 1999. The nobel and learned Lord, Lord Ackner, I agree, did not say "guru". There was reference to "in-house expert" which may or may not be offensive! I take no part in that, except to be deeply helpful! The Lord Chief Justice said: I have never suggested in this House or anywhere that the provision is contrary to the European convention. The argument of the noble Lord, Lord Lester, is one that I readily accept". When the noble Lord's mother regards him as a guru, she is absolutely right and I can prove it by the Lord Chief Justice's unsolicited testimonial.

I have thought carefully about everything that has been said, and have reread all the debates. There will not be a compromise on principled view. On behalf of the Government I do not accept the amendment. I do not say that discourteously. I simply put my position perfectly plainly. I recognise that when professional colleagues whom I have known over the years come to a view, it has to be taken seriously. The noble Lord, Lord Thomas of Gresford, and I in past times have both prosecuted and defended in rape cases. That does not make us necessarily experts in the conclusions to which we come, plainly because we come to different ones. But the arguments that were deployed by a number of my colleagues and judges whom I respect have to be attended to. I believe that they have got it wrong. I do not say that on the basis of absolute certainty but after weighing up the arguments.

If a man is accused of rape, as the noble Lord, Lord Cope of Berkeley, said, not all complaints are genuine; and as the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Ackner, said on earlier occasions, the penalties for rape are extremely serious. We say that in these circumstances, which we believe to be genuinely analogous to the prohibition presently in our law, the defendant will have representation; he will have it at public expense; and the judge has duties to give specific warnings to juries. If a defendant says, "I wish to conduct the whole of my trial myself?, the scheme is flexible enough to enable one to say, "You may conduct the whole of the trial yourself, except when the woman complainant"— I use the word "complainant" because she has not at that stage been demonstrated by the verdict to be a victim—"gives evidence. The female complainant will have to be cross-examined on your behalf by counsel provided by the state. "That is entirely consistent with what the noble Lord, Lord Lester, said is a compliance with our obligations under the European Convention.

I cannot assist your Lordships further. I respectfully dissent from what is being said by those whose opinions I respect. I believe that we have reached the correct conclusion. I do not believe that it has led to miscarriages of justice in children's cases. I believe that the noble Lord, Lord Goodhart, the noble Viscount, Lord Brentford, and others are right when they say that rape is a crime which is in a category different from other grievous crimes. I shall not be able to say to a woman complainant, if she asks me, "Well, you can rely on the guidelines in Brown and Edwards. ", because I do not believe it.

7 p.m.

Lord Ackner

My Lords, we have had a long debate which in many ways has covered the points. Therefore, I shall be brief. The noble Earl, Lord Russell, asked me how on earth it could be unfair to deprive a defendant of the right to cross-examine in person. I find no difficulty in that. If one is dealing with an alleged rape case where for years the parties have lived together as man and wife, as partners or whatever, and the allegation is untrue, the defendant in person is in a far better position to be able to catch the complainant out in the answers she gives because of the way he can remind her of other events which corroborate his point. The dishonest answers to his questions can be quickly followed by further questions which, in the end, may either establish to the jury's satisfaction that it is an untrue bill or cause her, as the noble Baroness indicated in one case, to say, "You are quite right, I have made this up. We had a row and I am trying to get even with you. ".

The noble Lord, Lord Goodhart, was good enough to admit that his practice does not involve dealing with crime. He says that he cannot conceive that the result of this embargo on cross-examination could possibly lead to an innocent person being convicted. Putting it briefly, the noble and learned Lord the Lord Chief Justice said that one of the results could be that innocent people are convicted and guilty people are acquitted. That is in Hansard; it was his view.

It is very easy to see how the guilty person can be convicted because no judge can stop the defendant in his final speech indicating how unfairly he has been treated by his inability to cross-examine, although every other stage of the defence was conducted by him personally. It is very easy to make out a situation of unfairness, the little man being faced by the heavier personalities of the prosecution.

The constant reference to "victim" instead of to "complainant" led the Lord Chief Justice to say, which I quoted in the debate on 22nd June 1998: Where, for example, a defendant is accused of rape, the trial cannot be conducted on the assumption that he is a rapist and the complainant a victim, since the whole purpose of the proceeding is to establish whether that is so or not". The emotive nature is one of the problems of a rape trial.

I do not know who accepted that under the Bill as now drafted the situation is evenly balanced. I certainly did not. It is unevenly balanced. It was evenly balanced when the defendant had the right to cross-examine personally or leave it to a professional to do so.

I conclude by referring to briefing material sent to me by Women Against Rape to deal with the debate which began when the noble Baroness, Lady Byford, drew attention to a Home Office report on the subject. It reads: Re: question from Lady Byford to be debated in the Lords on 22 June [1998] proposing to remove the right of defendants accused of rape from cross-examining the witness. We strongly oppose this proposal, which was also put forward in the recent Home Office Report on vulnerable and intimidated witnesses, Speaking Up for Justice. This change is not in the victim's interest, nor what most victims have demanded: it would not deal with the pervasive biases and discrimination women and children face in the criminal justice process … Removing the right of men accused of rape to defend themselves would not change the way victims of rape are treated in court by barristers who are routinely allowed to ask irrelevant questions about victims' medical and sexual history … The problem is not who asks the questions but which questions they are allowed to ask. Also, removing the right of defendants to conduct their own defence would set a very dangerous precedent for civil rights generally. The Report already recommends extending this ban to other offences, confirming our fears. This fundamental change to the law would not only affect the defendant's right but also the way rape cases are dealt with". It ends in this genial way: The experiences, needs and demands of rape survivors rather than the agenda of opportunistic and populist politicians and the media must frame the public debate and changes in the law". It does not appear as though the powerful support for the Bill as drafted is the same as the support from outside which was anticipated. This is a serious matter and it is high time that we had the opinion of the House. I therefore commend my amendment to that end.

7.9 p.m.

On Question, Whether the said amendment (No. 15) shall be agreed to?

Their Lordships divided: Contents, 47; Not-Contents, 149.

Division No. 2
CONTENTS
Ackner, L. [Teller.]	Elliott of Morpeth, L.
Aldington, L.	Falkland, V.
Barber, L.	Fookes, B.
Cadman, L.	Fraser of Carmyllie, L.
Campbell of Alloway, L.	Harmar-Nicholls, L.
Carnegy of Lour, B.	Harmsworth, L
Carnock, L.	Harris of Greenwich, L.
Clark of Kempston, L.	Hayhoe, L.
Courtown, E.	Holdemess, L.
Craigavon, V.	Hooson, L.
Cross, V.	Hurd of Westwell, L.
Darcy de Knayth, B.	Ironside, L.
Dundonald, E.	Kintore, E.

Lane, L.	Sharples, B.
Leigh, L.	Stockton, E.
McConnell, L.	Stoddart of Swindon, L.
McNair. L.	Swinfen, L.
Mancroft, L.	Thomas of Gresford, L. [Teller.]
Monson, L.	Thomas of Gwydir, L.
Munster, E.	Vinson, L.
Nunbumholme, L.	Weatherill, L.
Pearson of Rannoch, L.	Wharton, B.
Renton, L.	Windlesham, L.
	Wynford, L.
NOT-CONTENTS
Acton, L.	Hollis of Heigham, B.
Addington, L.	Howie of Troon, L.
Alli, L.	Hoyle, L.
Amos, B.	Hughes, L.
Ampthill, L.	Hughes of Woodside, L.
Archer of Sandwell, L.	Hunt of Kings Heath, L.
Ashley of Stoke, L.	Irvine of Lairg, L. [Lord Chancellor.]
Bach, L.
Barnett L.	Islwyn, L.
Blackstone, B.	Jacobs, L.
Blease, L.	Jay of Paddington, B. [Lord Privy Seal.]
Borrie, L.
Bragg, L.	Jeger, B.
Brentford, V.	Jenkins of Putney, L.
Brookman, L.	Kennedy of The Shaws, B.
Brooks of Tremorfa, L.	Kennet, L.
Burlison, L.	Kirkhill, L.
Byford, B.	Lester of Herne Hill, L.
Carlisle. E.	Levy, L.
Carmichael of Kelvingrove, L.	Linklater of Butterstone, B.
Carter, L. [Teller.]	Lockwood, B.
Castle of Blackburn, B.	Lofthouse of Pontefract L.
Christopher, L.	Lovell-Davis, L.
Clarke of Hampstead, L.	Macdonald of Tradeston, L.
Clement-Jones. L.	McIntosh of Haringey, L. [Teller.]
Clinton-Davis, L.
Cocks of Hartcliffe, L.	Mackenzie of Framwellgate, L.
Colwyn. L.	Maddock, B.
Cope of Berkeley, L.	Mar and Kellie, E.
David, B.	Masham of Ilton, B.
Davies of Oldham, L.	Mason of Barnsley, L.
Desai, L.	Merlyn-Rees, L.
Dholakia, L.	Miller of Hendon, B.
Dixon, L.	Milner of Leeds, L.
Donoughue, L.	Molloy, L.
Dormand of Easington, L.	Monkswell, L.
Dubs, L.	Morris of Castle Morris, L.
Eden of Winton, L.	Morris of Manchester, L.
Evans of Parkside, L.	Murray of Epping Forest, L.
Falconer of Thoroton. L.	Newby, L.
Farrington of Ribbleton, B.	Nicol, B.
Fitt, L.	Norton of Louth, L.
Gilbert, L.	Orme, L.
Glenamara, L.	Palmer, L.
Goodhart, L.	Peston, L.
Goudie, B.	Pitkeathley, B.
Gould of Potternewton, B.	Plant of Highfield, L.
Graham of Edmonton, L.	Ponsonby of Shulbrede, L.
Grantchester, L.	Prys-Davies, L.
Gray of Contin, L.	Ramsay of Cartvale. B.
Gregson, L.	Randall of St Budeaux, L.
Grenfell, L.	Razzall, L.
Hacking, L.	Rea, L.
Hampton, L.	Renwick of Clifton, L.
Hamwee, B.	Rodgers of Quarry Bank, L.
Hardie, L.	Rowallan. L.
Hardy of Wath, L.	Russell, E.
Harris of Haringey, L.	St. John of Bletso, L.
Haskel, L.	Sandberg, L.
Hayman, B.	Sawyer, L.
Hilton of Eggardon, B.	Sefton of Garston, L.
Hogg of Cumbernauld, L.	Sewel, L.

Sharp of Guildford, B.	Turner of Camden, B.
Shepherd, L.	Uddin, B.
Simon, V.	Ullswater, V.
Simon of Highbury, L.	Walker of Doncaster. L.
Smith of Gilmorehill, B.	Wamer, L.
Steel of Aikwood, L.	Watson of Invergowrie, L.
Stone of Blackheath, L.	Wedderbum of Charlton, L.
Strabolgi, L.	Whitty, L.
Taylor of Blackburn, L.	Wilcox, B.
Thomas of Macclesfield, L.	Williams of Crosby. B.
Thomas of Walliswood, B.	Williams of Elvel, L.
Tomlinson, L.	Williams of Mostyn, L.
Tope, L.	Winchilsea and Nottingham, E.
Trefgame, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 40 [Restriction on evidence or questions about complainant's sexual history]:

Lord Ackner moved Amendment No. 16:

Page 29, line 2, leave out ("and") and insert ("or").

The noble and learned Lord said: My Lords, this is almost a sister amendment to the one we have just dealt with. What one needs to do is compare the statutory provision as it now is with the statutory provision which the Government wish to put in. The statutory provision is found in the Sexual Offences (Amendment) Act 1976. That Act came into existence as a result of a special committee presided over by Mrs. Justice Heilbron because of anxieties which were being felt in relation to the law on rape. Provision was made with regard to restrictions on evidence in rape cases. The relevant provision is quite short. It is Section 2(1) and 2(2). Section 2(1) states: If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant? and these words are important, with a person other than that defendant". Subsection (2) provides: 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 that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked". Guidance has been given and I shall not deal with it in detail. However, it is convenient to refer briefly to the case of Viola in 1982. In the words of the then Lord Chief Justice, the noble and learned Lord, Lord Lane, that set out very clearly that the first question which a judge must ask himself is: Are the questions proposed to be put 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". The second matter which the judge must consider is: if the questions are relevant, then whether they should be allowed or not will of course depend on the terms of Section 2", which I have read out.

What that comes to is that it would be unfair to a defendant if it was more likely than not that the particular question or line of questions, if allowed, might reasonably lead a jury properly directed in the summing-up to take a different view of the complainant's evidence from that which they might have taken had the question or series of questions not been allowed.

One turns now to what is suggested in its place. I have referred to it as a convoluted piece of drafting and I shall not read the whole of Clause 40. However, I shall read out the opening words because it is important that one has them in mind. Clause 40 states: If at a trial a person is charged with a sexual offence, then, except with the leave of the court… no evidence may be adduced, and … no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant…The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied", and here come the two matters on which the court must be satisfied, and they are cumulative, (a) that subsection (3) or (5) applies, and (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". Subsection (3) states: This subsection applies if the evidence or question relates to a relevant issue in the case and either…that issue is not an issue of consent; or…it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged …(i) to have taken place at or about the same time as the event which is the subject matter of the charge against the accused, or (ii) to have been, in any respect, so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place at or about the same time as that event that the similarity cannot reasonably be explained as a coincidence". I then jump to subsection (5) which states: This subsection applies if the evidence or question …relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and…in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused". It could well occur that the matters required under subsection 2(a)—that subsection (3) or (5) applies—do not apply but the judge, after careful consideration, considers that a refusal of leave might have the result of rendering unsafe a conclusion of the jury as a result of refusing that material.

That is an extremely odd situation to find on the face of a Bill; that a trial is to proceed notwithstanding that the judge has been obliged by Parliament to reach a decision, which, might have the result of rendering unsafe a conclusion of the jury". There will be those on the Bench who may well take the view that if a judge reaches that decision he should stop the case because to continue could have the result of an unsafe conviction which can then be put right only by an appeal.

The Minister was asked to deal specifically with that by my noble friend Lord Bledisloe on the second day of the Report Stage; that is, on 8th March 1999. The noble Viscount said: My Lords, before the noble Lord sits down referring to the Minister, perhaps I may ask whether he accepts, on the construction of subsection (2) and the use of the word 'and', that there will necessarily follow, at least in logic, situations where the judge considers that to exclude the evidence would render the conclusion unsafe but, nonetheless, he is debarred from admitting it by subsection (3) or subsection (5)". That provoked a very short answer in these terms: My Lords, we need to turn our minds to the proper analysis of Clause 40". —[Official Report, 8/3/99; cols. 35 and 36.] That is what I seek to do and I hope, on this occasion, that we shall receive an answer from the Minister.

Perhaps I may show your Lordships how this may work in practice, just to highlight the absurdity. As I see it, if I were the defendant, I could not ask the question of the complainant, "We have lived together for five years, have we not?" because that is not permitted, as I understand it, by the provisions. "I am not asking about something contemporaneous; I am asking about something in the past, but it is immensely relevant because it will be the foundation of my defence that the lady consented".

Imagine a case where a man has been led on to have sexual relations with a woman and, after that experience, she tells him, "I am a prostitute and my fee is £100. If you don't pay me that fee, I shall allege that you raped me". As I see these provisions, I would not be allowed to ask that question. Again, that is not dealing with contemporaneous conduct, as she has been a prostitute for many years. I do not suggest, for one moment, that the fact that a woman has been a prostitute means that she consented to anything; but, where there is a clash between the complainant and the defendant, that is one of the factors that one would expect a jury to take into account.

I have sought to right this by a very simple process of taking the word "and" out of paragraph (a) so that it is not cumulative, and putting in its place "or". So, the material would go to the jury if the court considered that the refusal of that material might have the result of rendering unsafe a conclusion of the jury, or that material would go before the jury if subsections (3) and (5), which I have read out, apply.

I am sorry that our resident expert on European law is not with us but, in my respectful submission, I would have suggested that subsection (2) as it stands, with the word "and", is in breach of the relevant convention because it indicates on the face of the Bill that there can be a situation in which material which is relevant has been refused because it does not come within a couple of categories but the judge, nevertheless, is put in a position where the trial is apparently to proceed although the result may well be an unsafe conviction.

I am sorry that at the moment there is no real prospect of an authoritative contradiction, but I would have submitted that such a provision on the face of a Bill cannot enable the Minister's certificate about compliance with European human rights to be valid. In those circumstances, I beg to move my amendment, confident that if it is agreed to we would be complying with the European Convention on Human Rights and there would be no real prospect of an unsafe conviction.

7.30 p.m.

Lord Desai

My Lords, my Amendments Nos. 17 to 20 are grouped with those of the noble and learned Lord, Lord Ackner, and, for the convenience of the House, I shall speak to them together.

As noble Lords are aware, I am not a lawyer but a lay person. In Committee I tried to argue on the side of the complainant about Clause 40. I was unfortunately not present on the second day of Report when the amendments tabled by my noble friend were debated and accepted. However, if one reads Hansard, one sees that much of the debate was not on those two amendments but on others which argued on the side of the lawyers and judges rather than that of the lay complainant, if I may so describe it.

These amendments concern Clause 40(3) which was introduced on Report. I should like to deal with them in turn. In a previous debate, the noble Viscount, Lord Brentford, made an interesting comment which I should like to use as a preface to my speech. It is right that the legal system should ensure that although the guilty may escape conviction, no innocent person shall be convicted. That is quite right.

However, it must be said that although that may be true on a case-by-case basis— and, indeed, it is a vital freedom that we have— the whole system has failed women in rape cases. That can be seen by the lack of complaints. Obstacles are set up, whether legal or psychological, which prevent women from coming to court. The literature, which is now quite extensive, shows that there are bitter complaints about the way the courts deal with such cases. That indicates to me, as a lay person, that something must be done about the system. Certain presumptions in our culture are taken as obvious truths and are not even questioned.

My Amendment No. 17 deals with the first of them, which is all about belief in consent. I remember saying in Committee that, as far as I am concerned, consent is consent, and nothing else. There has to be real consent at the moment when the incident is alleged to have happened. I take an almost existential view of this— that the past and the future do not matter and that all that matters is whether, at the moment in question, there was consent. I remember that in Committee my noble friend Lady Mallalieu introduced the fanciful concept of "the balcony scene". I said that I did not care how many times a woman had staged the balcony scene, or even if it happened four hours before the incident; the point was that if she did not consent at that moment, she did not consent.

The idea that belief in consent can be admitted as a ground of defence can almost be described in the words of the noble Viscount, Lord Tenby, who referred to driving a coach and horses through the provisions. That would damage Clause 40, which was very good when it started out.

In a largely sexist society, some men believe that all women are there for them to have sexual relations with and they cannot get it into their heads that a woman has a mind of her own and an autonomy of her own and that when she says "No", she may actually mean "No" Regardless of what such men's friends may have told them about the woman or what they may think that they have heard, they must realise that "No" means "No".

That view was taken by the Law Commission. I refer to section 7.19 on page 95 of its Consent and the Criminal Law, which states Arguably this should depend on the nature of the defendant's reasons, (if any) for believing that she does consent when she obviously does not. If, for example, he thinks so merely because he has been told by a third party that he can expect her to resist, we consider that it is arguable that such a basis for his conduct should be regarded as simply illegitimate— that, if he chooses to ignore the woman's actual response in favour of what someone else has told him, he must take the consequences, because his conduct involves a denial of her autonomy and a lack of respect for her status as an individual with a will of her own. Similarly, if he thinks that she consents because he thinks that when a woman says "no" she means "yes", it is equally arguable that he is relying on an attitude towards other people (female or male) which is no longer acceptable. The question is whether society should state clearly that a man who ignores a woman's express refusal will not be permitted to claim that he did not think she meant it". That is a clear statement about belief in consent.

I have tabled Amendment No. 17 because I am worried that, although sexual history cannot be introduced to show sexual consent, it may be brought in by the back door to show something about belief in consent. Belief in consent would then become another spurious ground on which many matters which we did not want to be introduced into a rape trial would be introduced. That is why my Amendment No. 17 seeks to insert the words on the Marshalled List into subsection (3)(a).

Amendments Nos. 18 and 19 are slightly different. They relate to the concept of similar behaviour. Amendment No. 18 is cast much more broadly. Amendment No. 19 is much more narrowly drawn and deals with subsection (3)(b)(ii). Again, the same kind of issues arise. When we speak about "similar behaviour", relations with third parties might be introduced as might previous history. Indeed, all sorts of what I would consider to be irrelevant details would arise, such as those not relating to the moment of the alleged incident.

I do not like the 24-hour provision which has been introduced because I think that 24 hours are a long time in a person's life. A person may change his or her mind in a period of 24 hours. People can get divorced in 24 hours— or even married! Therefore, with regard to the "similar behaviour" statement, we should make quite sure that any evidence being admitted has probative value. The notion of probative value was cited in the Canadian case. I am not a lawyer so I shall not refer to that except generally. If such evidence is introduced, one must be quite sure that it is not cited only to prejudice the jury or to upset the complainant. It must have probative value. As it is now quite late, I rest my case there and commend my amendments to the House.

7.45 p.m.

Lord Monson

My Lords, in introducing his series of amendments, the noble Lord, Lord Desai, suggested that there were two opposing camps, so to speak, in this matter. He referred to a lawyers' and judges' side in opposition to the lay and complainants' side. As a layman myself, and someone who is just as ignorant of the law as the noble Lord, I do not think that it is quite so simple. The noble Lord has forgotten one important group. What about the unjustly accused?

Let us consider the case of a girl student who, from time to time, tends to drink too much, as students often do and as students have always done throughout history. One evening, in an alcoholic haze, she allows herself to be taken advantage of, to use a very old fashioned phrase, and the next morning she wakes up stone cold sober, albeit with a throbbing headache, and notices with horror a male student in bed next to her. She sincerely but mistakenly believes that she never consented and that therefore she has been raped. What is the poor male student, the innocent male student, to do if he is not allowed, for example, to cite previous cases of similar behaviour on the part of the lady in question?

Lord Goodhart

My Lords, I have a good deal of sympathy with what the noble Lord, Lord Desai, suggests, but I think that he may be on the wrong track. The problem is not in the procedure, but in the substantive law. It seems to me that the English law has gone wrong in allowing unreasonable belief as a defence to a charge of rape. To make that change in the law so that belief in consent was only a defence if it was reasonable would involve a change in the substantive law on rape, and that is not something that can be done in this Bill.

The problem with the noble Lord's amendments is that they would exclude relevant evidence not only in cases where belief was unreasonable, but also in cases where the belief was reasonable. That is why I do not feel able to support the noble Lord in his amendments although I have much sympathy with the motivation behind them.

Baroness Mallalieu

My Lords, the noble Lord, Lord Desai, says that questions asked in this area must have probative value. That is one of the tests currently applied under the present law. Questions as to previous history are not permitted by the judge unless they have probative value.

The noble Lord said that the issue is whether the woman consented at that moment and that what happened previously and what happened subsequently are irrelevant. However, the jury has to decide whether the woman consented at that moment. It may well be that in certain circumstances things which have happened before or subsequently may assist members of the jury to reach the right verdict about her view at that time. If a woman says "No" and the defendant then tries to advance the defence that he believes that she consented, he is unlikely in my experience to be believed by a jury. For those reasons, I cannot support the noble Lord's amendment, but I strongly support that tabled by the noble and learned Lord, Lord Ackner.

The Minister must be aware that there is a profound dismay at the Criminal Bar about the provisions of Clause 40; it is one shared by many of the judges who will have to try the cases. The clause is widely felt to be not only unnecessarily complex, but also draconian in its effects. My best efforts at earlier stages of the Bill and in subsequent correspondence with the Minister, for which I thank him, failed to dissuade him from his belief that he has "got Clause 40 about right". I leave it tonight to others and also to those in another place to try to amend the clause. I have little doubt that should it reach the statute book in its present state without amendment, in common with the noble and learned Lord, Lord Bingham of Cornhill, when he spoke at Committee stage, justice in some cases will not be done.

Lord Thomas of Gresford

My Lords, it is always difficult to comprehend the sort of circumstances that can arise in a rape trial before it happens. But I want to pose a simple situation. Suppose a man and woman are living together happily for a period of time but then another man comes into the woman's life and she runs off with him. He then leaves her and she returns to her original partner. It is not a complicated set of facts; it is something that might frequently happen. Suppose she then has a row with her original partner about having run away with the other man and following that row she goes to the police and complains that her partner raped her.

That is not caught by subsection (3), which says: This subsection applies if the evidence or question relates to a relevant issue in the case and either … (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged … (ii) to have been, in any respect, so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place at or about the same time as that event that the similarity cannot reasonably be explained as a coincidence". It has nothing to do with that situation; it has nothing to do with subsection (1).

At the trial for rape, counsel for the original partner wishes to put to the complainant that she made the complaint because of a row that she had over her going away with the other man. He cannot do it. Subsection (3) does not apply; subsection (5) does not apply. Indeed, such a question might be caught by subsection (4), which deals with material which impugns the credibility of the complainant as a witness.

So the very essence of the quarrel between the two, which the defendant says caused her to make the complaint of rape, cannot be investigated. It does not appear before the jury at all. The judge hears about it in the absence of the jury and determines that refusal of leave to cross-examine the girl about running away with another man and being left by him— having a relationship with somebody else, the pinpoint of me quarrel between them— might have the result of rendering unsafe the conclusion of the jury. What is the judge then to do? He cannot allow the case to continue. It is not possible that a case can be put right on appeal if the statutory formula has been followed. Appeals do not come into it.

So the situation arises where the judge says, "I am sorry, under this legislation I cannot permit you to question this girl about the relationship when she ran away with another man before coming back to the defendant; the essence of the quarrel between them. I cannot allow you to ask that question. But I appreciate that if I cannot do that, there is the possibility of a grave injustice in this case. So this case will go no further; I withdraw it from the jury. "That will be the end. It may be that the defendant's defence was true. It may be that it was not true. If it was not true an injustice has been done and a guilty man has got away. But the judge could not permit the matter to proceed.

It is impossible to devise legislation— all this wordy stuff that is so difficult to understand— which can cope with all the possibilities. That is the reason why the Criminal Bar, as a whole, is against these provisions. That is why we perceive the possibility of injustice. I believe that the amendment proposed by the noble and learned Lord, Lord Ackner, which seeks to put the simple word "or" instead of "and" would permit the jury to investigate exactly what went on between those two people and the third person and would result in a proper verdict. It is only by the use of a simple word that a dramatic difference can be made to the possibilities of justice in this case. I support the amendment.

Lord Cope of Berkeley

My Lords, this amendment, like the last one, is not a party matter; it is a matter of conscience. It is something about which each of us must decide and I speak only for myself.

It is a difficult matter to get right, as this short debate and earlier discussion on the Bill have shown. A most ingenious and simple amendment has been moved by the noble and learned Lord, Lord Ackner. I congratulate him on the ingenuity of his drafting, if it is not lèse-majesté to say so to a distinguished lawyer.

The original proposals in the Bill have been improved as a result of amendments made. But the principle remains; that is, that the sexual history of the complainant should only be brought out in court to a veiy limited extent, as set out by the noble and learned Lord in moving the amendment. At the same time, the restrictive effects of the Bill are not as powerful as some would wish; hence the amendments tabled by the noble Lord, Lord Desai.

In relation to the amendments of the noble Lord, Lord Desai, it seems to me that the defendant's belief or otherwise in the consent of the complainant at the time of the alleged offence, will often be highly crucial. The sexual history of the complainant will be very relevant to a decision by the jury on whether or not he, assuming it is a he, believed in her consent. In that way the sexual history can be extremely relevant to the court case. I am not therefore inclined to support the amendment of the noble Lord to limit to an even greater degree the way in which it can be brought out in support of arguments about belief in consent.

But it is a difficult judgment to veer between the proposed amendment of the noble and learned Lord, and the noble Lord, Lord Desai. For myself, I am prepared to support the Government on this amendment. It comes back to discussion on the previous amendment; that is to say, to the agonised decision and discussions which take place when a complainant is deciding whether or not she is prepared to support her charges. Everything I said on the previous amendment is relevant here.

I want more rape cases to be decided in court by juries, and not decided by default of the woman not being prepared to pursue the case. I am satisfied that at present women are understandably deterred from so doing. As I said on the previous amendment, I do not believe that this clause— even taken with the other protective provisions in the Bill for screens and so on— will absolutely remedy this difficulty; of course it will not. However, I believe it moves in the right direction. Therefore, on balance I continue to support the Bill as it has been put forward to us by the Government in its amended form. However, as I say, I speak only for myself.

8 p.m.

Lord Williams of Mostyn

My Lords, in this group, apart from the amendments which stand in the names of the noble and learned Lord, Lord Ackner, and my noble friend Lord Desai, is Amendment No. 21 wliich stands in my name. I shall deal with that first. The amendment to Clause 42 brings the rule-making power under that clause into line with those under Clauses 20 and 36. The amendment would allow for rules to be made to govern confidential or sensitive information being withheld from parties to the proceedings.

I now turn to the more fundamental questions. I shall have to speak at a little length, for which I apologise in advance. The amendment of the noble and learned Lord, Lord Ackner, seems to be inspired by the idea that there are relevant pieces of sexual behaviour evidence that Clause 40 as currently drafted excludes, but which ought to be admitted. I do not agree with that proposition. My belief is that Clause 40 allows enough scope for all relevant evidence about a complainant's sexual behaviour to be introduced. Clause 40 provides a statutory framework for determining relevance. The questions that we consider to be appropriate are the following. First, is the evidence relevant; that is, does it fall under subsection (3) or subsection (5)? If it does, is it significant enough that refusing to admit it might render the jury's or the court's conclusion on a relevant issue in the case unsafe? That is the answer that I sought to give to the noble Viscount, Lord Bledisloe, on the previous occasion we discussed this matter. We see this significance test as a modified version of the test in Section 2 of the 1976 Act, to which the noble and learned Lord, Lord Ackner, referred earlier.

There is a difference of approach between that of the noble and learned Lord, Lord Ackner, and mine. The noble and learned Lord, Lord Ackner, considers that previous sexual behaviour can be so strong that it is relevant to the complainant's credibility or consent, despite it being outside the ambit of subsections (3) or (5). That is our point of disagreement. I have to make it plain that as a matter of government policy we have concluded that evidence of a complainant's past attitude to or experience of sexual relations is not material upon which a jury should reasonably rely to conclude that the complainant might indeed have consented on the occasion that is the subject of the complaint. Consensual sex does not mean consent to sex in general— it does not even mean consent to sex with a particular person— it means consent to sex with a particular individual on a particular occasion.

I do not think it would be appropriate, as my noble friend Lord Desai suggests, to require judges to warn juries that consent on one occasion does not imply consent on another. I sympathise with the sentiments behind his amendments as outlined in his speech. However, the complainant is not on trial. I do not think there ought to be a statutory requirement in this regard although, of course, judges may sometimes find it appropriate to make exactly the point that my noble friend Lord Desai suggests.

There are only three exceptions to the ban on sexual behaviour evidence in relation to consent. The first exception is where the evidence is needed to rebut specific claims made by the prosecution on behalf of the complainant. The second exception is evidence of the complainant's sexual behaviour at or about the same time as the alleged offence. The amendment that I laid at Report stage is not intended to widen the time limit substantially beyond the 24 hours limit originally suggested. The provision is intended only to catch behaviour that is practically contemporary with the alleged offence. For example, sexual behaviour running up to an alleged rape, where the complainant said she had decided not to consent to full sex at the last minute.

Anything that happened more than 24 hours before or after the alleged offence should only rarely be considered to take place, at or about the same time as the alleged offence. However, the new formulation in subsection (3)(b)(i) gives more flexibility if something happened a few minutes— or at the very most, a few hours— outside that 24 hour limit. The reverse is also true. If something occurred just within 24 hours of the offence, but the court did not really consider it as having taken place, at or about the same time as the alleged offence, it could exclude it.

It is not intended to catch evidence of behaviour three or four or five days before the alleged offence. I think particularly of the description in Committee by the noble and learned Lord the Lord Chief Justice of a situation where a complainant had sex with four different men a few days before the alleged offence. If the issue is actual consent itself to the alleged offence I believe it is right that such behaviour should not be admissible.

My noble friend Lord Desai raised questions as to the distinction between consent and belief in consent. That was raised on a more general basis. The Law Commission's views are being examined— as I said on an earlier occasion— under the umbrella of the sexual offences review currently being carried out in the Home Office. The noble Lord, Lord Goodhart, is right in saying that one is dealing with the substance of description of the offence. I agree that this is not the occasion to try to tinker with that.

I am content to leave it to the courts to decide whether there would be grounds— specific to a particular case and the knowledge the defendant had of the complainant's habits— for finding this relevant to a defence of belief in consent. There is an important distinction which is often elided between the two issues. The fact that a complainant has consented previously does not mean that she will consent again. A woman exercises— and is entitled to exercise— her consent independently on each occasion. The defendant's accumulated knowledge and experience of the complainant may affect his belief in consent at the time of the alleged offence, even though, if he reflects on it later, he may recognise and concede that that belief was mistaken.

I turn to strikingly similar and non-coincidental behaviour. The only other circumstance where earlier sexual behaviour should be admissible in relation to consent is provided for in subsection (3)(b)(ii). That is, where the behaviour was so similar in detail to the defence's version of the event when the offence was alleged to have taken place that there is no way that the similarity between the two occasions can be reasonably explained as a coincidence. That might include something along the lines of the Romeo and Juliet scenario introduced by my noble friend Lady Mallalieu, where the circumstances in which the alleged offence took place were so unusual that the jury should know that the complainant had consented in strikingly similar situations in the past.

The term "strikingly similar" does not include evidence of a general approach towards consensual sex such as a predilection for one night stands, or for having consensual sex on a first date. Still less does it include the fact that the complainant has previously consented to sex with people of the same race as the defendant, or has previously had sex in a car, for example, before alleging that she was raped in a car. Such behaviour could reasonably be explained as coincidental, as it falls within the usual range of behaviour that people display. Behaviour that can be admitted under subsection (3)(b)(ii) must be the sort of behaviour that is so unusual that it would be wholly unreasonable to explain it as coincidental.

For example, supposing a complainant alleged gang rape, and a co-accused in the case claimed consent. If the defence could produce specific, factual evidence that the complainant had previously engaged in consensual group sex under similar circumstances, this might be relevant to the jury's determination of whether she consented to the events that she is now claiming she did not consent to. The complainant's previous involvement in sexual activity of this nature should only be introduced where it is so unusual that it might affect the jury's view of the complainant's behaviour at the time of the events in question.

We have considered other models, as I mentioned briefly on our earlier visits to this territory. We have considered the legislation in Scotland, Canada and New South Wales. The wording of the Scottish legislation places little emphasis on relevance or probative value. Research done for the Scottish Office in 1992 concluded that the "interests of justice" gateway in that legislation—which allowed evidence to be introduced without a specific statutory constraint on how it could be considered relevant or its probative value—meant that sexual behaviour evidence was admitted much more often than had been intended. Some practitioners who were questioned said that the inclusion of the gateway made the legislation "a waste of time".

The New South Wales legislation provides a list of circumstances where sexual behaviour evidence can be admitted. We did not consider that an exclusive list of circumstances was appropriate. In Clause 40 we have introduced a framework setting out how sexual behaviour evidence could be considered relevant to an issue in the case.

We briefly discussed Canada on the previous occasion. The noble Lord, Lord Lester of Herne Hill, brought to your Lordships' attention the challenge in the case of Seaboyer. Following that challenge, Canada established a complete ban on the use of the complainant's sexual behaviour to suggest that she would have been "more likely to have consented to the sexual activity that forms the subject matter of the charge" or that she "is less worthy of belief' In other words, a ban on sexual behaviour evidence being used in relation to consent or credibility.

All other sexual behaviour evidence is covered by a relevance test: that it relates to an issue in the trial; it must also be of a specific instance of sexual activity; and it must have significant enough probative value that that value is not substantially outweighed by the danger of prejudicing the jury or the court if it is introduced.

Perhaps I may turn to the amendment of the noble Lord, Lord Desai, and its general approach. We decided not to require the court to weigh probative value against the risk of prejudice and to use the test in subsection (2)(b) of Clause 40—that a refusal of leave to introduce the evidence might have the result of rendering unsafe a conclusion of the jury or the court on any relevant issue in the case. We chose deliberately to do that because, having redrawn the law on relevance in Clause 40, it seemed preferable to us to require the courts to consider only the significance of relevant evidence, and to admit it even if there was a risk that it would prejudice the court against the complainant.

Another aspect of our legislation reflecting the Canadian experience is that both cover evidence of sexual behaviour between the complainant and any other person, including the defendant. We believe it is appropriate to put all sexual behaviour on the same footing, whoever it is with. Behaviour with the defendant may sometimes be irrelevant; behaviour with someone other than the defendant may sometimes be relevant.

We believe that the only way to achieve a more consistent application of the law across the board is to create a statutory framework of relevance. I believe that that is what we have done in Clause 40. Under subsections (3) or (5) the relevance test must be passed and then Clause 40(2)(b) introduces the question of the refusal of leave in the way that I discussed earlier.

A number of examples were mentioned. The noble and learned Lord, Lord Ackner, raised the question of a man who enters into an arrangement with a prostitute, has sex with her, refuses to pay and she cries rape. There is nothing in the Bill to stop the defendant making that clear in his defence.

I believe that if one analyses Clause 40—this is the phrase I used in answer to the noble Viscount, Lord Bledisloe, on the last occasion—one sees that it sets a statutory framework. That statutory framework deals with relevance. We believe that in the past the law has not been sufficiently balanced between respective interests. We believe—I am sorry to say this to my noble friend Lady Mallalieu—that we have got it right in Clause 40. That is why I invite your Lordships not to agree to the amendments put forward by the noble and learned Lord, Lord Ackner, which seek to alter "and" to "or", and, for distinct reasons which I hope I have ventilated sufficiently, I also invite your Lordships not to agree to the different approach put forward by the amendment of my noble friend Lord Desai.

Lord Ackner

My Lords, before my noble friend sits down, can he tell me whether it would have been permissible for a defendant in the light of the: provisions of this Bill to ask the complainant the question: "Until six months ago we were living as man and wife and had been so living for three years"? With regard to the prostitute example which I gave, how is that permissible under the clause? How can a defendant ask the complainant: "Is it not a fact—a fact which I have only recently learnt—that you have been carrying on the profession of a prostitute for the past two years?"?

8.15 p.m.

Lord Williams of Mostyn

My Lords, that was not the example that the noble and learned Lord put earlier. The example he put earlier was of the prostitute having sex with the defendant and then saying, "My fee is £100. If you do not pay I will accuse you of rape"'. I believe that is admissible under Clause 41(l)(c). As to the other point of whether the question could be put that "We have been living together for years or months and we have had a sexual relationship", that depends on the issue to which the evidence is intended to go. Is it a question of consent or is it a question of belief in consent? I believe that the statutory framework in Clause 40 enables the court to distinguish between the two. Too often the issue of consent or belief in consent are hopelessly intermingled. We have tried to point out that these are different aspects of relevance; belief in consent is one; consent is another. They are not the same and they should be approached as conceptually different.

Lord Ackner

My Lords, before my noble friend finally sits down, can he tell us what he considers is the right approach of the judge who says, "The material you want to put in, although relevant, does not qualify under subsections (3) or (5), but I accept that my refusal to allow this material may have the result of rendering unsafe a conclusion of the jury"? Is he to continue with I the trial, or what is his function? Does my noble friend accept that a provision on the face of the Bill in these terms cannot justify a certificate that the human rights legislation has been complied with?

Lord Williams of Mostyn

My Lords, I believe that the Bill in its present form complies with our obligations under the European Convention on Human Rights. Secondly, the judge's duty— I am putting it as bluntly as this because I have been asked to— at the end of the day is to apply the law that Parliament passes. He therefore needs to put his judicial eye and mind to the final form of legislation; he then has loyally to put that law into effect. I believe that judges recognise their duties because they take an oath to do that.

Lord Ackner

My Lords, I shall be very brief. Dealing with the last point, the noble Lord seems to have overlooked the inherent obligation of a judge to see that justice is done within his court. If he concludes that a situation has arisen which might well result in an unsafe verdict, he is entitled— and some would say obliged— to stop the trial. That is only one indication of an unfortunate piece of drafting in Clause 40. It also provides a situation which is quite unreal in insisting on contemporaneity as regards the sexual activities of the complainant.

The simplicity of the position at the moment was summed in a case of Brown in 1982: The question was whether, on the facts of a particular case, the complainant's attitude to sexual relations could be material upon which a jury could reasonably rely to conclude that the complainant might indeed have consented to sexual intercourse on the material occasion, despite her evidence to the contrary. It was a question of degree in every case". Your Lordships are invited to exchange that simplicity for the unintelligible (in some respects) complexity of Clause 40. I accordingly invite your Lordships to pass the amendment that I have proposed.

The Deputy Speaker (Baroness Turner of Camden)

My Lords, the Question is that this amendment be agreed to. As many as are of that opinion will say "Content"; to the contrary, "Not-Content". I think the Not-Contents have it.

Amendment negatived.

Lord Desai

had given notice of his intention to move Amendment No. 17: Page 29, line 8, after ("consent") insert ("nor of the accused's alleged belief that there was consent"). The noble Lord said: My Lords, I merely wish to thank my noble friend for the long and detailed answer that he gave. I shall not move the amendment.

[Amendment No. 17 not moved.]

[Amendments Nos. 18 and 19 not moved.]

Clause 41 [Interpretation and application of section 40]:

[Amendment No. 20 not moved.]

Clause 42 [Procedure on applications under section 40]:

Lord Williams of Mostyn moved Amendment No. 21:

Page 31, line 6, after second ("to") insert (", or withheld from, ").

On Question, amendment agreed to.

Clause 43 [Restrictions on reporting alleged offences involving persons under 18]:

Lord Williams of Mostyn moved Amendment No. 22:

Page 31, line 10, after ("applies") insert ("(subject to subsection (3))").

The noble Lord said: My Lords, this is a substantial group of amendments. It contains Amendments Nos. 22 and 23, 28 to 36, 39 and 44.

Amendments Nos. 22 and 23 are designed to ensure that children who are complainants of sexual offences do not qualify for protection under this clause and so do not lose the stronger anonymity protections under the Sexual Offences (Amendment) Act 1992. That means that there is no public interest defence available to editors who publish information leading to die identification of alleged victims of sexual offences at any age.

The new subsection 48 (7A)(b)(ii) provided in Amendment No. 32, and Amendment No. 44 to the Sexual Offences (Amendment) Act 1992, ensure that there is no waiver defence either for children under 16 who are allegedly victims or for witnesses of sexual offences.

This provision is to close a loophole in the current version of the Sexual Offences (Amendment) Act 1992 which allows a waiver to be granted by a child victim of a sexual offence, even without provision for parental or local authority involvement in the decision. In our discussions, which I have mentioned on a number of occasions, media representatives were confused as to whether a waiver from a child would be valid. We have no record of publishers ever trying to rely on them.

Amendments Nos. 22 and 23, therefore, ensure that the defence of publication being in the public interest is also not available for the identification of children who are witnesses to the commission of a sexual offence. That brings the protections of the pre-charge stage for child witnesses to these offences into line with child victims since the Sexual Offences (Amendment) Act 1992 does not provide a public interest defence for the latter.

The BBC and ITC regulatory codes and the PCC code all expressly provide that information leading to identification should never be published about children who are allegedly victims of, or witnesses to, sexual offences. Therefore, our amendments bring the law into line with the codes.

The next sub-series of amendments begins with Amendment No. 28. Perhaps I may deal with Amendments Nos. 28 and 29 and 32 to 35. Broadly, Amendments Nos. 32 and 33 split existing Clause 48 into two clauses, one dealing with offences and one with defences. The amendments add legislative provision for new defences based on the granting of consent to the publication of information. Amendment No. 33 splits Clause 48. A number of changes are made to Clause 48 before it is split by Amendment No. 32. They provide a new defence, that of gaining consent to publish from the person involved in the offence but not the person suspected of committing the offence. Amendment No. 32 introduces eight new subsections to Clause 48, subsections (7A) to (7H).

The split that Amendment No. 33 makes to Clause 48 places subsections (1) to (4) and subsections (8) and (9) in the clause under the rubric, "Offences under this chapter", and places subsections (5) to (7H) in one with the rubric "Defences". Amendments Nos. 28, 29, 34 and 35 are purely consequential.

I now turn to Amendment No. 36. This is one of a series of government amendments designed to address some further concerns about the way in which the new provisions restricting reporting apply. The amendment gives a list, neither exclusive nor exhaustive, of matters to which the court must have regard when deciding when something is, or is not, in the public interest. That responds in part to a desire expressed by some sections of the media, and certainly reflected in amendments tabled by the noble Lord, Lord Cope, on Report, to have a list of public interest indicators to guide their decision-making.

We thought that the Opposition amendments were too heavily slanted, as a list, in favour of the right of the press as opposed to the rights of individuals. So the new clause makes it clear that there is an interest in the open reporting of crime and of matters relating to human health and safety. It also emphasises, rightly and deliberately, the importance of the welfare of the individual. The clause also contains mention of the importance of exposing and preventing miscarriages of justice and the consideration of the views of the appropriate and protected persons. We believe, therefore, that the list is more balanced than that previously suggested, trying as it does to indicate the range of issues which publishers and the court should consider in deciding whether publication of the restricted information is justified. I repeat, it is not intended to be an exclusive list.

I shall now deal with Amendment No. 39. This amendment reflects the view of the print media that there is no case for imposing reporting restrictions on the identification of children who are alleged to have been the victims of, or witnesses to, any criminal offence other than sexual offences unless they have been identified as victims or witnesses involved in criminal proceedings. The print media argued that there was no case for pushing back the ban on identification of juvenile offenders beyond the point of arrest.

The print media argued that the imposition of such restrictions is in contravention of Article 10 of the European convention. They cited as part of their argument the case of Gleaves v. Deakin (1979). In Gleaves, the House of Lords came to the view that Article 10 was not contravened where, by reason of its nature or the circumstances in which it was published, suppression of a publication by penal sanctions was necessary in the public interest. That is our justification for introducing the measures in Clause 43.

The policy underlying the clauses is that the public interest is best served by making the interests of the child paramount over the interest in freedom of expression, and that the interests of the child are best served by mandatory privacy from public identification where it is alleged the child has committed an offence, and by a presumption towards that privacy where the child is alleged to have been the victim of, or witness to, an offence, unless those with responsibility for the child are content that the child's welfare will not be harmed by such publicity (Amendment No. 32 and related amendments) and that the only interests paramount over the interests of the child are the interests of justice, or, in the case of victims and witnesses, the wider public interest, having taken all such factors and factors, such as the need to protect public health and safety, into account (Amendment No. 36).

I believe that I have dealt with all the amendments which are extensive in this group. Essentially, we have come to these conclusions following the interventions of the noble Lord, Lord Cope, and the noble: Viscount, Lord Astor. I am happy to repeat my gratitude for the tone and approach that the noble Lord adopted. These provisions also follow lengthy discussions which I promised to have with representatives of the various media.

It is worth repeating that I listened carefully to the Article 10 questions that have been raised. It is important that we put frankly our reasons for the provisions in the clause. I repeat that those measures have been put in place for the reasons which I specified: public interest in the interests of the child; the interests of the child best served by privacy from public identification; the interests of the child best served by presumption towards privacy; and the only interests paramount over the interests of the child are the interests of justice. I have read out those features and factors in full detail and I simply headline them again as the basis for our policy approach.

I have listened to the press. I do not believe that they have persuaded me away from the conclusion that selective decisions about when to publish information are needed from the start of reporting such information; that the need to make such selective decisions should be imposed by statute; or that where such decisions are to be made at all, they should be made by parents or guardians of the child or be subject, if it is thought necessary, to confirmation by the courts. That is what the new Clause 43, as amended, will do.

It is important to bear in mind that the presumption created in Clause 43 does not automatically criminalise all publishers who deliberately or inadvertently make such identifications. Where a publisher has or is recognised by a court as having one or more of the defences, no criminal offence is committed.

The noble Lord, Lord Cope, asked about missing persons investigations and how they might be affected by the new provisions. As I said on that occasion in response to him, a police investigation of a missing person is not usually a criminal investigation in the early stages when appeals for information are made. I believe— and I am confirmed in it by experience— that the police take pains to make that distinction. That is an observation that the noble Lord had in mind. When the police have concluded that a criminal investigation is necessary, recourse to the court to get restrictions limited would be necessary only if the parents refuse permission or if it was suspected that the report could not be defended as in the public interest. I would be surprised if that were ever thought necessary, if a child's life were seriously in danger.

I hope that I have been able to cover those disparate matters to your Lordships' satisfaction. I beg to move.

8.30 p.m.

Lord Cope of Berkeley

My Lords, I am grateful to the Minister for most of the bloc of amendments which he moved, covering a number of different aspects of the restrictions on press freedom which are being imposed under the Bill.

On the question of missing persons, on occasions I have accompanied the police when missing persons have been reported and the hunt for them has started. Although obviously the first effort is directed at finding the missing person, whether a child or an adult, at the back of the minds of the police on the spot is the possibility, particularly in the case of a child, that an offence may have been committed. They would be failing in their duty if they were not alert to possible indicators that an offence may have been committed and that potentially there may even be evidence for future use. The possibility of a crime having been committed is present from more or less the first moment of the incident arising.

Of course, one of the changes to the Bill has been modification of the moment at which the restrictions start. I shall come back to that. My main interest in speaking on this group of amendments is Amendment No. 39 in my name and that of my noble friend Lord Astor. The amendment suggests that Clause 43 should not come into force until the Secretary of State provides, along with the order appointing a day for it to commence, a statement setting out, on the one hand, the necessity for the commencement of that section; and on the other hand, how that section complies with Article 10 of the European Convention on Human Rights to which the Minister referred.

I start from the proposition, which I do not think is contentious, that we should not put legal limits on the freedom of the press, except for good, proven reasons. The Minister has not tonight, or very much on previous occasions, attempted to set out the necessity for the commencement of the restrictions on Clause 43. The Government have not produced many examples to your Lordships' House about cases where the restrictions would have prevented mischief of one form or another. As I understand it, they have not produced an explanation or relevant examples to the representatives of the press when they have met them.

It is therefore at best unproven that this restriction is necessary. It is the reason for paragraph (a) in Amendment No. 39: the requirement that the Secretary of State should set out the necessity for the commencement of that section". We are not denying it to the Secretary of State entirely; we are just saying that in order to restrict the press the Secretary of State must set out the necessity. That is made more important by the fact that there are still some difficulties in the drafting of the clause. I believe that the Minister and his colleagues in the Home Office are still in the course of having discussions with representatives of the press. Perhaps the Bill will be further modified or improved in the course of its passage through another place.

I draw attention to the lack of certainty as to the commencement of an investigation. It will sometimes be difficult for representatives of the press and television to know when an investigation has commenced and hence when the restrictions will apply. That is one difficulty which remains in the drafting.

Amendment No. 32 helps, as the Minister set out, by providing for a waiver—I think that is the term—to be given in writing by the victims if they are aged 16 or 17 or by a parent or other responsible adult if the child is under that age. Obviously it may assist in some cases and it is a helpful amendment. However, it will not help in all that many cases because often it will be impossible, from a practical point of view, to obtain written permission in the form suggested.

We should bear in mind that we are dealing at least some of the time with circumstances where there has been a criminal event affecting a young person. That is not an easy moment at which to approach the parents for such a waiver or to expect them to make a considered judgment in a calm way about whether to sign a waiver of that type.

However, sometimes it will also affect even fairly routine coverage. There are often stories about young people who might be the victims or witnesses of offences under investigation often with photographs and so on willingly supplied, describing theft or vandalism or whatever it might be, and media coverage could be to the benefit of those who are affected. It will be difficult sometimes, with these stories, to get the necessary waiver, with the parents in a position of being faced with a lot of representatives of the media—regional and national in some cases—all wanting waivers signed so that they have a defence if the case should later come to court.

The second half of our amendment, that is subsection (b) of our Amendment No. 39, refers to the question of Article 10 of the European Convention on Human Rights. I heard what the noble Lord the Minister said. Of course I would expect him and his legal advisers to believe that this is within the convention, and he would sign a certificate to that effect, I am sure, after careful consideration of the different elements which might apply. Unfortunately at this moment we do not have the benefit of what I think the noble Lord described as our venerable in-house experts on the convention, but I understand that some lawyers advise that Clause 43 fails to comply with the convention.

I shall not enter into the legal arguments—I am not qualified to do so—and this is a case where legal opinion evidently can come down on either side. That should not surprise us because in every court in the land every day half the lawyers are proved wrong when they lose their cases. So it should not surprise us that there is more than one view as far as concerns the European convention. That is why Amendment No. 39 suggests that this clause should not come into force until the Secretary of State has formally set out how the section complies with Article 10 in a statement which should accompany the order allowing it to start.

I would say again that Amendment No. 39 does not attempt to prevent Clause 43 ever coming into force, but it does attempt to make sure that it really is required. Also, I hope it will encourage the noble Lord the Minister and his colleagues in the Home Office to continue their discussions with representatives of the media to make sure that the freedom of the press is safeguarded, as well as the interests of the young persons concerned, which is what we all want to do. I attach considerable importance to Amendment No. 39, although obviously we shall not reach it until later. However, it is down to be discussed with this group.

Lord Williams of Mostyn

My Lords, I wonder if I could respond in the helpful way that the noble Lord has dealt with these matters. I think he had a specific question about police investigations, and one finds the definition of a criminal investigation in Clause 43(12)(b). Dealing particularly with his points on Amendment No. 39, it would probably be helpful if I were to reply immediately. I do not believe that this amendment is necessary because the Secretary of State would have to set out the necessity for commencement. I do not think that would be a proper way to approach it. We have already certified of course that the section is compliant with Article 10, and the Secretary of State himself, introducing this in another place, will have to give his certificate also.

Essentially, I think I can answer the noble Lord in one or two sentences. One concerns the particular nature of childhood. I have not gone into the very helpful speech made by the noble Lord, Lord Windlesham, in Committee on 8th February, because it seemed to me idle simply to repeat what he said, to the general agreement of your Lordships I think, about our international treaty obligations. So I have deliberately not gone into that at this stage. It seems to me that the over-arching answer is that Parliament passed the Children and Young Persons Act in 1933 and our basic approach has not really altered at all since then.

Lord Cope of Berkeley

My Lords, but the approach is being considerably extended by the provisions of the Bill. So far as concerns Article 10 of the convention, yes, as I said in the course of my remarks, I am aware that the noble Lord signed a certificate. The amendment suggests that the Secretary of State should set out how Clause 43 complies with Article 10. I think that in view of the fact that there is more than one legal opinion, that will not be a mere certificate. It would be a statement of how, in the view of the Government and their legal advisers, it actually complied with that clause.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 23:

Page 31, line 22, leave out ("But the restrictions imposed by subsection (2)") and insert ("The restrictions imposed by subsection (2)—

1. (a) do not apply where the person involved in the offence as mentioned in that subsection is a person in relation to whom section 1 of the Sexual Offences (Amendment) Act 1992 (anonymity of victims of certain sexual offences) applies in connection with the offence; and
2. (b) in every case").

The noble Lord said: My Lords, I beg to move this amendment formally.

On Question, amendment agreed to. 3

Lord Williams of Mostyn moved Amendment No. 24:

Page 31, line 35, leave out from beginning to ("include") in line 36 and insert ("The matters relating to a person in relation to which the restrictions imposed by subsection (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection)").

The noble Lord said: My Lords, in this group are also to be found Amendments Nos. 25, 27, 42 and 43. These amendments are virtually identical in form and certainly in intention. They amend Clauses 43, 44 and 45 and Schedule 2 to the Bill. The changes to Schedule 2 are alterations to the amendments made to the Children and Young Persons Act 1933 and to the Sexual Offences (Amendment) Act 1992.

The effect of all these changes is to clarify the intention behind providing a list of pieces of information about a person which may lead to their identification. Concerns have been expressed about the benefits of including a list and there has also been some confusion about its purpose. The matters referred to in the list contained in the various provisions are only prohibited from publication if they lead to the public identifying one particular person. Name, address and photograph are obvious candidates but, for example, simply naming a school will not necessarily lead to the identification of one particular pupil.

Our intention in these provisions has never been for all such pieces of information to be routinely kept from the public. The intention has always been to protect the most vulnerable members of society from unwarranted publicity, not to restrict the publication of information which should rightly be in the public domain. I beg to move.

On Question, amendment agreed to.

Clause 44 [Power to restrict reporting of criminal proceedings involving persons under 18]:

Lord Williams of Mostyn moved Amendment No. 25:

Page 33, line 39, leave out from beginning to ("include") in line 40 and insert ("The matters relating to a person in relation to which the restrictions imposed by a direction under subsection (3) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection)").

The noble Lord said: My Lords, I beg to move this amendment formally.

On Question, amendment agreed to.

Clause 45 [Power to restrict reports about certain adult witnesses in criminal proceedings]:

Lord Williams of Mostyn moved Amendment No. 26:

Page 34, line 37, leave out from ("with") to end of line 38 and insert ("being identified by members of the public as a witness in the proceedings. ").

The noble Lord said: My Lords, this amendment is designed to make it clear that reporting restrictions should only be imposed when a witness is particularly frightened or distressed about the public identifying him or her as a witness in a criminal case. If a witness is therefore simply intimidated or distressed about giving evidence in general, that in itself should not be a justification for restricting reporting. The court must be satisfied that media reporting which led to the witness being identified would in itself reduce the quality of the witness's evidence or co-operation; otherwise it should not restrict the reporting. As the media have suggested to me, this is an important safeguard to avoid reporting restrictions being imposed unnecessarily. I beg to move.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 27:

Page 35, line 19, leave out from beginning to ("include") in line 20 and insert ("The matters relating to a witness in relation to which the restrictions imposed by a reporting direction apply (if their inclusion in any publication is likely to have the result mentioned in subsection (6))").

On Question, amendment agreed to.

Clause 48 [Offences under this Chapter]:

Lord Williams of Mostyn moved Amendments Nos. 28 to 33:

Page 37, line 37, leave out ("this section") and insert ("section (Offences under this Chapter)").

Page 37, line 42, leave out ("this section") and insert ("section (Offences under this Chapter)").

Page 38, line 8, leave out ("involve") and insert ("relate to either— (i)")

Page 38, line 10, at end insert ("or (ii) (where that offence is one in relation to which section 1 of the Sexual Offences (Amendment) Act 1992 applies) a person who is alleged to be a witness to the commission of the offence, ").

Page 38, line 16, at end insert—

("(7A) Subsection (7B) applies where—

1. (a) paragraphs (a) and (b) of subsection (6) apply, and
2. (b) the contravention of section 43(2) relates to a person ("the protected person") who is neither—
   1. (i) the person mentioned in subsection (7)(b)(i), nor
   2. (ii) a person within subsection (7)(b)(ii) who is under the age of 16.

(7B) In such a case it shall be a defence, subject to subsection (7C), to prove that written consent to the inclusion of the matter in question in the publication had been given—

1. (a) by an appropriate person, if at the time when the consent was given the protected person was under the age of 16, or
2. (b) by the protected person, if that person was aged 16 or 17 at that time,

and (where the consent was given by an appropriate person) that written notice had been previously given to that person drawing to his attention the need to consider the welfare of the protected person when deciding whether to give consent.

(7C) The defence provided by subsection (7B) is not available if—

1. (a) (where the consent was given by an appropriate person) it is proved that written or other notice withdrawing the consent—
1. (i) was given to the appropriate recipient by any other appropriate person or by the protected person, and
2. (ii) was so given in sufficient time to enable the inclusion in the publication of the matter in question to be prevented; or
2. (b) subsection (7E) applies.

(7D) Where—

1. (a) a person is charged with an offence under section (Offences under this Chapter), and
2. (b) the offence relates to the inclusion of any matter in a publication in contravention of a direction under section 45(2),

it shall be a defence, unless subsection (7E) applies, to prove that the person in relation to whom the direction was given had given written consent to the inclusion of that matter in the publication.

(7E) Written consent is not a defence if it is proved that any person interfered—

1. (a) with the peace or comfort of the person giving the consent, or
2. (b) (where the consent was given by an appropriate person) with the peace or comfort of either that person or the protected person,

with intent to obtain the consent.

(7F) In this section "an appropriate person", in relation to the protected person, means a person who is a parent or guardian of the protected person, except that—

1. (a) where the protected person is (within the meaning of the Children Act 1989) a child who is looked after by a local authority, it means a person who is—
   1. (i) a representative of that authority, or
   2. (ii) a parent or guardian of the protected person with whom the protected person is allowed to live; and
2. (b) where the protected person is (within the meaning of the Children (Northern Ireland) Order 1995) a child who is looked after by an authority, it means a person who is—
   1. (i) an officer of that authority, or
   2. (ii) a parent or guardian of the protected person with whom the protected person is allowed to live.

(7G) However, no person by whom the offence mentioned in section 43(2) is alleged to have been committed is, by virtue of subsection (7F), an appropriate person for the purposes of this section.

(7H) In this section "the appropriate recipient", in relation to a notice under subsection (7C)(a), means—

1. (a) the person to whom the notice giving consent was given,
2. (b) (if different) the person by whom the matter in question was published, or
3. (c) any other person exercising, on behalf of the person mentioned in paragraph (b), any responsibility in relation to the publication of that matter;

and for this purpose "person" includes a body of persons and a partnership. ").

Divide Clause 48 into two clauses, the first (Offences under this Chapter) to consist of subsections (1) to (4) and (8) and (9) and the second (Defences) to consist of subsections (5) to (7H).

On Question, amendments agreed to.

Clause 49 [Offences committed by bodies corporate or Scottish partnerships]:

Lord Williams of Mostyn moved Amendments Nos. 34 and 35:

Page 38, line 25, leave out ("48") and insert ("(Offences under this Chapter)").

Page 38, line 36, leave out ("48") and insert ("(Offences under this Chapter)").

On Question, amendments agreed to.

Lord Williams of Mostyn moved Amendment No. 36:

After Clause 49, insert the following new clause—

DECISIONS AS TO PUBLIC INTEREST FOR PURPOSES OF CHAPTER IV

(". —(1) Where for the purposes of any provision of this Chapter it falls to a court lo determine whether anything is (or, as the case may be, was) in the public interest, the court must have regard, in particular, to the matters referred to in subsection (2) (so far as relevant).

(2) Those matters are—

1. (a) the interest in each of the following—
1. (i) the open reporting of crime,
2. (ii) the open reporting of matters relating to human health or safety, and
3. (iii) the prevention and exposure of miscarriages of justice;
2. (b) the welfare of any person in relation to whom the relevant restrictions imposed by or under this Chapter apply or would apply (or, as the case may be, applied); and
3. (c) any views expressed—
1. (i) by an appropriate person on behalf of a person within paragraph (b) who is under the age of 16 ("the protected person"), or
2. (ii) by a person within that paragraph who has attained that age.

(3) In subsection (2) "an appropriate person", in relation to the protected person, has the meaning given by section 48(7F). ").

On Question, amendment agreed to.

Clause 60 [Regulations and orders]:

Lord Williams of Mostyn moved Amendment No. 37:

Page 43, line 37, after ("order") insert ("made by the Secretary of State").

The noble Lord said: My Lords, this amendment is technical and is designed to ensure that orders made by courts under the Bill, such as referral orders, are not subject to the restrictions in Clause 60(4). Clause 60 is intended to apply only to regulations and orders made by the Secretary of State; in other words, to secondary legislation, not court orders. I beg to move.

On Question, amendment agreed to.

Clause 62 [Corresponding provisions for Northern Ireland]:

Lord Williams of Mostyn moved Amendment No. 38:

Page 44, line 21, after ("II") insert ("(other than section 56)").

The noble Lord said: My Lords, with this amendment are grouped Amendments Nos. 38, 40 and 45 to 59. The essence of the Saunders judgment was that the use made by the prosecution of transcripts of evidence given to an inspector under the Companies Act constituted an infringement of the right to a fair trial by virtue of Article 6(1). Amendments were tabled at an earlier stage to amend similar provisions on the admissibility of answers given under compulsory powers in other enactments in the regulatory sector in Great Britain. The effect of those amendments, which were accepted, is that answers obtained pursuant to a procedure which includes the power to compel answers, whatever the investigative or regulatory regime, cannot be used as part of the prosecution case except for the limited purposes of proceedings for offences that may include, for example, perjury arising out of the giving of evidence. These amendments make the necessary changes to Northern Ireland legislation by identifying trie relevant statutory provision for the "sanction offence" in those UK enactments that are directly applicable to Northern Ireland. They amend the Northern Ireland equivalent to the Companies Act 1985, the Insolvency Act 1986 and the Company Directors Disqualification Act 1986.

Schedule 3 restricts the use that can be made of answers obtained under compulsory powers in legislation that regulates financial and commercial activities. Such answers can be used only in criminal trials in very restricted circumstances. Where the offence being tried is an offence of having failed or refused to answer a question, or failing to disclose a material fact, or for having given an untruthful answer, obviously the answers will need to be used in prosecution evidence. The offences in Section 94 of the Banking Act 1987 are those of having given false and misleading information in answers obtained under compulsory powers. Their omission from the original schedule was an oversight. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker (Lord Ampthill)

My Lords, I believe that Amendments Nos. 39 to 59 have already been spoken to.

Clause 64 [Short title, commencement and extent]:

Lord Cope of Berkeley moved Amendment No. 39:

Page 44, line 34, at end insert ("but any order appointing a day in respect of section 43 shall be accompanied by a statement by the Secretary of State setting out—

1. (a) the necessity for the commencement of that section; and
2. (b) how that section complies with Article 10 of the European Convention on Human Rights. ").

The noble Lord said: My Lords, I spoke to Amendment No. 39 earlier. In view of the Minister's reply I seek the opinion of the House. I beg to move.

8.54 p.m.

On Question, Whether the said amendment (No. 39) shall be agreed to?

Their Lordships divided: Contents, 54; Not-Contents, 109.

Division No. 3
CONTENTS>
Aldington, L.	Higgins, L.
Annaly, L.	Hooper, B.
Barber, L.	Jopling, L.
Blaker, L.	Kelvedon, L.
Blatch, B.	Knight of Collingtree, B.
Boardman, L.	Lamont of Lerwick, L.
Brentford, V.	Luke, L.
Bridgeman, V. [Teller.]	Mackay of Ardbrecknish, L.
Burnham, L.	Miller of Hendon, B.
Byford, B.	Monson, L.
Cadman, L.	Montgomery of Alamein, V.
Campbell of Alloway, L	Mountevans, L.
Carnegy of Lour, B.	Northesk, E.
Chesham, L.	Norton of Louth, L.
Cope of Berkeley, L.	Peyton of Yeovil, L.
Courtown, E.	Rees, L.
Dean of Harptree, L.	Renton, L.
Dixon-Smith, L.	Rowallan, L.
Eden of Winton, L.	Seccombe, B. [Teller.]
Elliott of Morpeth, L.	Stewartby, L.
Elton, L.	Stockton, E.
Ferrers, E	Swinfen, L
Fookes, B.	Taylor of Warwick, L.
Glentoran, L	Thomas of Gwydir, L.
Goschen, V.	Wakeham, L
Hayhoe, L.	Wise, L.
Henley, L.	Wynford, L.
NOT-CONTENTS
Acton, L.	Gould of Pottemewton, B.
Addington, L.	Graham of Edmonton, L.
Alli, L.	Grenfell, L.
Amos, B.	Grey, E.
Ampthill, L.	Hacking, L.
Archer of Sandwell, L.	Hampton, L.
Ashley of Stoke, L.	Hardie, L.
Bach, L.	Hardy of Wath, L.
Blackstone, B.	Harris of Greenwich, L.
Blease, L.	Harris of Haringey, L.
Borrie, L.	Haskel, L.
Bragg, L.	Hayman, B.
Brookman, L.	Hilton of Eggardon, B.
Burlison, L.	Hogg of Cumbernauld, L.
Callaghan of Cardiff, L.	Hollis of Heigham, B.
Carlisle, E.	Howie of Troon, L.
Carter, L.	Hoyle, L.
Castle of Blackburn, B.	Hughes of Woodside, L.
Chandos, V.	Hunt of Kings Heath, L. [Teller.]
Christopher, L.	Jeger, B.
Clarke of Hampstead, L.	Judd, L.
Clinton-Davis, L.	Kennet, L.
Craigavon, V.	Kintore, E.
Darcy de Knayth, B.	Kirkhill, L.
David, B.	Linklater of Butterstone, B.
Davies of Oldham, L.	Lockwood, B.
Dholakia, L.	Lofthouse of Pontefract, L.
Dixon, L.	McIntosh of Haringey, L. [Teller.]
Donoughue, L.
Dormand of Easington, L.	Mackenzie of Framwellgate, L.
Dubs, L.	Mackie of Benshie, L.
Evans of Parkside, L.	McNair, L.
Falconer of Thoroton, L.	Mallalieu, B.
Farrington of Ribbleton, B.	Mar and Kellie, E.
Geraint, L.	Molloy, L.
Gilbert, L.	Monkswell, L.
Goodhart, L.	Morris of Castle Morris, L.
Goudie, B.	Morris of Manchester, L.

Murray of Epping Forest, L.	Sharp of Guildford, B.
Nicol, B.	Simon, V.
Palmer, L.	Simon of Highbury, L.
Phillips of Sudbury, L.	Smith of Gilmorehill, B.
Pitkeathley, B.	Steel of Aikwood, L.
Plant of Highfield, L.	Stone of Blackheath, L.
Ponsonby of Shulbrede, L.	Taylor of Blackburn, L.
Prys-Davies, L.	Thomas of Gresford, L.
Ramsay of Cartvale, B.	Thomas of Macclesfield, L.
Randall of St. Budeaux, L.	Thomas of Walliswood, B.
Razzall, L	Turner of Camden, B.
Renwick of Clifton, L.	Uddin, B.
Sainsbury of Turville, L.	Warner, L.
Sawyer, L.	Watson of Invergowrie, L.
Scotland of Asthal, B.	Whitty, L.
Sefton of Garston, L.	Williams of Mostyn, L.
Sewel, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly.

9.2 p.m.

Lord Williams of Mostyn moved Amendments Nos. 40 and 41:

Page 45, line 11, after ("sections") insert (" 56, ").

Page 45, line 11, at end insert— ("( ) Paragraph 3(4) of Schedule 1 extends also to Scotland. ").

On Question, amendments agreed to.

Schedule 2 [Reporting restrictions: miscellaneous

amendments]:

Lord Williams moved Amendments Nos. 42 to 44:

Page 51, line 40, leave out from beginning to ("include") in line 41 and insert ("The matters relating to a person in relation to which the restrictions imposed by subsection (1) above apply (if their inclusion in any publication is likely to have the result mentioned in that subsection)").

Page 54, line 22, leave out from beginning to ("include") in line 23 and insert ("The matters relating to a person in relation to which the restrictions imposed by subsection (1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection)").

Page 56, line 30, at end insert— ("( ) In subsection (3) (cases where written consent not a defence), at the end insert ", or that person was under the age of 16 at the time when it was given. "").

On Question, amendments agreed to.

Schedule 3 [Restriction on use of answers etc. obtained under compulsion]:

Lord Williams of Mostyn moved Amendments Nos. 45 to 58:

Page 58, line 11, at end insert ("or (d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").

Page 58, line 27, at end insert ("or (d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").

Page 60, line 40, at end insert ("or (c) an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath). "").

Page 61, line 11, at end insert ("or (d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").

Page 61, line 28, at end insert ("or (d) an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath).

Companies (Northern Ireland) Order 1986 (N. I. 6) The Companies (Northern Ireland) Order 1986 is amended as follows. In Article 427 (production of documents and evidence to inspectors conducting investigations into companies), after paragraph (5) (use of answers given to inspectors) insert— (5A) However, in criminal proceedings in which that person is charged with an offence to which this paragraph applies—

1. (a) no evidence relating to the answer may be adduced, and
2. (b) no question relating to it may be asked,

by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person. (5B) Paragraph (5A) applies to any offence other than an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath). In Article 440 (production of company documents to Department), after paragraph (8) (use of statements made under the Article) insert— (8A) However, in criminal proceedings in which that person is charged with an offence to which this paragraph applies—

1. (a) no evidence relating to the statement may be adduced, and
2. (b) no question relating to it may be asked,

by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person. (8B) Paragraph (8A) applies to any offence other than—

1. (a) an offence under paragraph (6) or Article 444; or
2. (b) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").

Page 61, line 42, at end insert ("or section 94(1)(a) below;").

Page 61, line 47, at end insert ("or (d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").

Page 62, line 10, at end insert ("or section 94(4) below;").

Page 62, line 15, at end insert ("or (d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").

Page 62, line 27, after ("above") insert ("or section 94(l)(a) below;").

Page 62, line 32, at end insert ("or (d) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath). "").

Page 63, line 12, at end insert ("or (d) an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath).

Companies (Northern Ireland) Order 1989 (N. I. 18) —(1) Article 23 of the Companies (Northern Ireland) Order 1989 (admissibility in evidence of statements) is amended as follows.

1. (2) That Article is renumbered as paragraph (1) of that Article.
2. (3) After that paragraph insert—

(2) However, in criminal proceedings in which any such person is charged with an offence to which this paragraph applies—

1. (a) no evidence relating to the statement may be adduced, and
2. (b) no question relating to it may be asked,

by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person. (3) Paragraph (2) applies to any offence other than—

1. (a) an offence which is—
   1. (i) created by rules made for the purposes of this Order under the Insolvency Order, and
   2. (ii) designated for the purposes of this paragraph by such rules or by regulations; or
2. (b) an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements made otherwise than on oath).

(4) Regulations under paragraph (3)(a)(ii) shall after being made be laid before the Assembly.

Insolvency (Northern Ireland) Order 1989 (N. I. 19) —(1) Article 375 of the Insolvency (Northern Ireland) Order 1989 (admissibility in evidence of statements of affairs etc.) is amended as follows.

1. (2) That Article is renumbered as paragraph (1) of that Article.
2. (3) After that paragraph insert—

(2) However, in criminal proceedings in which any such person is charged with an offence to which this paragraph applies—

1. (a) no evidence relating to the statement may be adduced, and
2. (b) no question relating to it may be asked,

by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person. (3) Paragraph (2) applies to any offence other than—

1. (a) an offence under Article 34(6), 57(6), 58(8), 81(7), 84(5), 85(3)(a), 111(7), 162(2), I72(l)(a) or (d) or (2), 174, 199(5), 324(1), 325(l)(b) or (5) or 327(1) or (3)(a) or (b);
2. (b) an offence which is—
   1. (i) created by rules made under this Order, and
   2. (ii) designated for the purposes of this paragraph by such rules or by regulations; or
1237
3. (c) an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath).

(4) Regulations under paragraph (3)(b)(ii) shall after being made be laid before the Assembly. "").

Page 63, line 30, at end insert ("or (c) an offence under Article 7 or 10 of the Perjury (Northern Ireland) Order 1979 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath). "").

Page 63, line 38, at end insert— ("Proceeds of Crime (Northern Ireland) Order 1996 (N. I. 9) In paragraph 6 of Schedule 2 to the Proceeds of Crime (Northern Ireland) Order 1996 (admissibility of evidence), for sub-paragraph (b) substitute— (b) on his prosecution for some other offence where evidence relating to any such answer or information is adduced, or a question relating to it is asked, by or on behalf of that person; or". ").

On Question, amendments agreed to.

Schedule 4 [Minor and consequential amendments]:

Lord Williams of Mostyn moved Amendment No. 59:

Page 67, line 16, at end insert—

("Companies (Northern Ireland) Order 1989 (N. I. 18) In Article 3(1) of the Companies (Northern Ireland) Order 1989 (interpretation), in the definition of "regulations" after "subject" insert "(except in Article 23(3)(a)(ii))".

Insolvency (Northern Ireland) Order 1989 (N. I. 19) In Article 2(2) of the Insolvency (Northern Ireland) Order 1989 (interpretation), in the definition of "regulations" for "Article 359(5)" substitute "Articles 359(5) and 375(3)(b)(ii)". ").

On Question, amendment agreed to.

An amendment (privilege) made; Bill passed, and sent to the Commmons.