HL Deb 31 March 2003 vol 646 cc1127-56

House again in Committee on Clause 1.

Lord Falconer of Thoroton moved Amendment No. 7: Page 1, line 18, leave out "Section 78 applies" and insert "Sections (Presumptions about the absence of belief in consent) and (Conclusive presumptions about consent) apply

The noble and learned Lord said: We now turn to Clause 78. I have been extremely grateful for the discussions I have had with a number of noble Lords inside the House and members of the judiciary outside the House in considering Clause 78. I shall start by explaining why we included these provisions in the Bill.

In its consultation paper Setting the Boundaries, the independent review body proposed that there should be a statutory list of circumstances in which it could be conclusively presumed by the jury that the complainant did not consent to sexual activity. The aim was to clarify existing case law and to incorporate it into statute, thereby allowing Parliament to give a clear indication to the courts and society at large about the circumstances in which sexual activity will not be condoned and in which there can be no doubt that a jury will pass a guilty verdict in relation to any defendant who is proved to have committed the relevant act.

We support the general intention of the review body and agree that making a clear statement in the legislation about the circumstances in which sexual activity is not acceptable will provide juries with a clear framework within which to make fair and just decisions. It would also serve as a clear statement to the public more widely. This should redress the balance in favour of victims. We hope that this will encourage victims to place their faith in the criminal justice system and to bring more cases to trial.

However, we were not satisfied that the circumstances proposed by the review body were all ones in which it could be safely and conclusively assumed that consent was not present. Notwithstanding existing case law, we believe that, in the interests of justice to the defendant, a conclusive presumption of guilt should be allowed only in very narrowly defined circumstances in which it is impossible to conceive that the complainant could have consented to the alleged sexual activity.

In our view, there are only two circumstances in which it can be conclusively presumed that consent was not present—namely, where the prosecution is able to prove that the defendant practised deception about the nature or purpose of the sexual act or where the defendant impersonated someone known personally to the complainant in order to obtain consent. In such cases, there can be no doubt in anyone's mind that the activity was non-consensual.

In addition, where someone claims that he believed the complainant was consenting solely on the basis of what he was told by a third party, we are of the firm view that he should be conclusively presumed to have acted unreasonably. Assuming that the prosecution proved that the complainant did not consent, the defendant will be found guilty.

Beyond this, other circumstances suggested by the review body may give rise to serious doubts about the ability of the complainant to exercise a free choice. However, in those cases, we believe that the defendant should still be given the opportunity to rebut any presumptions made against him. Where, for example, someone engages in sexual activity with their kidnapper while being held hostage for a ransom, empirical evidence suggests that we cannot rule out the possibility, however remote, that the sexual activity might be truly consensual. The kidnapper would still be guilty of abduction but not of the sex offence if he could establish that he truly believed the complainant consented and that it was reasonable in the circumstances so to believe.

By way of further example, where a person is physically disabled and his normal means of communication is by means of sign language that only a trained person could understand, this does not rule out the possibility that the disabled person may have communicated his consent at another time using an intermediary.

In light of these concerns, should we limit ourselves to listing in statute the two sets of circumstances in which it should be conclusively presumed that consent is not present and that all other cases should be left to the prosecution and defence to argue as they do now, without making any statutory changes to that process? We think not. That would ignore all the evidence that indicates that victims currently do not have faith in the court process and that the attrition rate in rape and other sexual abuse cases is too high. We discussed that before the supper break. We need to take steps to raise the public perception of the ability of our courts to deliver justice.

We think, therefore, that we should incorporate in statute rebuttable presumptions where the prosecution proves that one of the circumstances in Clause 78(3) existed, that the defendant knew this and that the complainant did not consent. This will make it crystal clear that the burden lies on the defendant to prove that he believed that the complainant was consenting. This clearly shifts the balance in favour of the complainant, although only if the circumstances and the victim's lack of consent are established. It is fully intended to do so, because the case has been moved out of the arena of balancing "he said" against "she said" by the strength of the evidence produced by the prosecution.

A clear signal is then sent to everyone about the circumstances in which sexual activity will be presumed to be non-consensual, and anyone who decides to engage in sexual activity in one of those defined circumstances cannot fail to be aware of the obligation upon him to make sure that his sexual partner does, in fact, consent. Where there is any doubt, he should desist. We believe that there is a great deal to be gained from having guidelines approved by Parliament and enshrined in statute.

However, since publication of the Bill, our proposals have been criticised by judges and other legal practitioners as being overly complicated and that there would be a risk of juries acquitting defendants not on the facts of the case but because they do not understand the direction they have been given or how to assess the evidence.

There would also be a risk in cases where a jury convicts the defendant that the complicated nature of these provisions is likely to lead to appeals in respect of whether the directions to the jury were either accurate or appropriate.

We have listened to these criticisms and discussed them in particular with the noble Lord, Lord Thomas of Gresford. However, we did not restrict our discussions but discussed the matter widely. We have also spoken to members of the senior judiciary. We have come to the conclusion that Clause 78 could and should be simplified, while retaining our policy objective of making clear in statute that where sexual activity is shown to have taken place in certain specified circumstances it will be presumed that consent was not given.

As the clause was drafted in the introductory print of the Bill, there were two rebuttable presumptions: an evidential one in relation to lack of consent and a legal or persuasive burden in relation to belief in consent. We are, in tabling government Amendments Nos. 380, 381, 382, 383, 384, 385 and 387, dropping from the clause the weaker evidential burden in relation to lack of consent. This burden was always going to be relatively easy for the defendant to rebut as all he would need to do would be to go into the witness box and say that the complainant seemed to be consenting.

We are, however, retaining the stronger, and more effective, persuasive burden in relation to belief in consent. So if the prosecution proves the existence of one of the circumstances in subsection (3), that the defendant knew of the circumstances and that the complainant did not consent, the defendant will be taken not to have believed that the complainant consented unless he is able to prove that he did believe that the victim consented. This places a persuasive burden on the defendant in relation to belief in consent. He will need to persuade the jury, on the balance of probabilities, that, notwithstanding the existence of any of the circumstances in subsection (3)—for example, that the victim was subjected to violence immediately before the act—he nevertheless believed that the complainant consented.

We have also separated off into their own clause the conclusive presumptions on consent in subsections (5) to (8) of the clause as it stands in the introductory print. That is done by Amendment No. 398.

Our purpose is to simplify the existing clause and to signal the difference between the two types of presumption. We are making no changes to the provisions relating to conclusive presumptions. Amendments Nos. 7, 18, 29, 41 and 399 are purely consequential textual amendments resulting from the change.

While the conclusive presumptions have also been criticised, it is important that they stay in the Bill. The list of circumstances at Clause 78(8) relates to situations in which it is to be conclusively presumed both that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act.

The first of these circumstances in subsection (8)(a) relates to occasions on which the defendant intentionally deceives the complainant as to the nature and purpose of the relevant act. For example, it applies when a doctor digitally penetrates the patient, telling her it is necessary for medical reasons when in fact it is for his own sexual gratification. That is taken from a precedent that has been firmly established by case law. We are not proposing any changes to the existing law. We are only making it clear in statute. We are trying to bring the law on sexual offences in one place.

The second of these circumstances is based on Section 1(3) of the Sexual Offences Act 1956, which provides that a man who induces a married woman to have sex with him by impersonating her husband commits rape. We have changed that so that it applies to impersonating any person known personally to the complainant. Again, we are simply putting the existing law in one place.

Subsection (5) contains a different kind of presumption. When the prosecution is able to prove that the defendant did the relevant act and that the complainant did not consent to it, and the only evidence adduced by the defendant about the circumstances that led him to believe that the complainant consented relates to something said or done by a third party, the defendant will conclusively be presumed not to have met the requirements of the reasonableness test. It is the personal responsibility of the defendant to ensure that the complainant has given consent to the relevant act, and the provisions in subsection (5) make it clear that a defendant cannot rely on a third party to discharge that responsibility for him. Thus, for example, it will not be sufficient for a defendant to claim that he believed that the complainant consented because a friend told him that the complainant wanted to have sex with the defendant and that he should ignore any protests by the complainant because she would be pretending to resist.

Amendments Nos. 394 and 395 are minor drafting amendments. The effect of subsection (3)(a) and (b) is that where there is violence or a threat of violence immediately before the relevant act, Clause 78 applies. Subsection (4) extends that so that when there is a series of sexual acts, Clause 78 applies where the violence or threat took place immediately before the first of those acts. Amendments Nos. 394 and 395 change subsection (4) so that instead of referring to the time "when" the relevant act began, it refers to the time "immediately before" the relevant act began, thus more closely reflecting the wording in subsection (3).

We believe that Clause 78 as amended by these amendments achieves the policy intention stated in Setting the Boundaries, listing those circumstances where consent will be presumed absent or most likely to be absent in a workable way. It is both simple and clear. I appreciate that amendments have been tabled in relation to the particular circumstances that should be covered in our list of rebuttable presumptions. They have been grouped for debate at a later date and, with the leave of Members of the Committee, I will defer discussion on what is in Clause 78(3) until those points have been made. I beg to move.

Baroness Noakes

I thank the Minister for introducing the amendments in this group and for his helpful letter of explanation, sent when he tabled the amendments—especially for the text of the redrafted Clauses 78 and 79. That made our lives a little easier.

I shall speak to Amendments Nos. 17, 28, 40, 379, 385, 386, 396 and 397, as well as to clause stand part. I shall attempt so far as possible to take into account the impact of the Minister's amendments and avoid overlap.

It is probably easiest if I start with Amendment No. 385. In that case, the Government have agreed with our amendment. Subsection (2) of Clause 78 was deemed unworkable by very many people. I am glad that the Government have withdrawn that aspect of Clause 78. As the Minister explained, the meat of Clause 78 will now be found in two places: subsections (1) and (3) as redrafted in one new clause. My Amendments Nos. 379 and 386 propose the deletion of subsections (1) and (3). Hence, some of the issues that caused me to table those amendments remain after the redraft that the Minister has just explained.

I deal first with the shifting burden of proof for the defendant which was formerly in Clause 78(1)(b) but remains in the redrafted Clause 78. We welcome the abandonment of Clause 78(1)(a) and its confusing presumption of lack of consent. However, Clause 78(1)(b) as it remains, with its presumption of lack of belief in consent, raises issues of fairness in the shifting of the burden of proof to the defendant. The Criminal Bar Association has pointed out that if the circumstances set out in what is currently Clause 78(3) are established, there will already be a heavy evidential burden on the defendant with regard to the mental element, especially since the objective reasonableness test in Clause 1(3) applies. The association believes that the shifting burden of proof will be an unnecessary complication for trial judges and juries and will not increase conviction rates. I look to the Minister to comment in particular on the workability of the redrafted part of Clause 78. Workability, as I said in connection with other groups of amendments, is a key issue for these Benches.

Clause 78(3) survives unscathed in the Government's redraft. My Amendment No. 386 proposes the deletion of the clause, but that is on a probing basis. In the report Setting the Boundaries, the recommendation was that the law should set out a non-exhaustive list of circumstances where consent would not be present. However, it would be left to the court to consider the specific circumstances. In several respects, the Government's rebuttal presumptions do not go as far as suggested in the report. For example, the report suggested that the list should cover fear of serious detriment such as the loss of a job, and that does not find its way into Clause 78(3).

One of the problems with definitive lists such as that in subsection (3) is that other circumstances will be treated as of much less importance by reason of their exclusion from the definitive list. Indeed, in the Government's White Paper, Protecting the Public, they said: Including such a list … will … end a clear … signal a bout the circumstances in which sexual activity is likely to be wrong". The problem is that an equally clear signal is sent that circumstances not on the list are not necessarily wrong. I shall listen carefully to what the Minister has to say about how flexibility in the law will be retained in this definitive list. Will he say, for example, how he sees items not on the list—for example, the fear of economic harm—interacting with the list as drafted?

Amendments Nos. 396 and 397 delete subsections (5) to (8) of Clause 78, the subsections which survive in the second redrafted clause. I have a problem with conclusive presumptions. Being black and white, they give no flexibility to cope with situations that are grey, and it is in the grey areas that we find the majority of human existence. I start with subsections (5) and (6), which result in conclusive presumptions about what reasonable persons would think or do where the only evidence put forward of a defendant's belief rests on something said or done by a third party.

My question to the Minister is why it was necessary to put these provisions in the Bill and why they are in the form of conclusive presumptions. Using the objective test of reasonableness in Clause 1(3), we have a test as to whether a reasonable person would doubt consent and then act in a sufficient way to resolve doubt. Do the Government believe that a jury faced with no evidence of consent other than second-hand evidence would conclude under Clause 1(3) that the defendant had thought and acted reasonably? I cannot think of a set of circumstances that would lead a jury to that conclusion.

Having introduced the objective test of reasonableness, the Government should stick to it, however. If they did not they would say that, judged objectively, someone may have reached a reasonable conclusion about consent and acted reasonably to resolve any doubt, but is still guilty because of the conclusive presumptions set out in Clause 78. What is implied is that the Government do not have complete confidence in the objective tests that they have drafted in Clause 1(3).

Clause 78(7) and (8) also involves conclusive presumptions about consent and belief in consent, as the Minister explained. It deals with very black and white circumstances. I completely see that, in the majority of cases, deceit such as that referred to will mean that consent does not exist as under the current law. Is the Minister convinced that there are no grey areas in which, for example, it is clear that consent would have been given despite the deceit?

I would feel more comfortable with those subsections if rebuttable rather than conclusive presumptions were set up. How can the Government be sure that no injustice could be done through the conclusive presumptions?

Lord Thomas of Gresford

I am listed among those opposing the Question whether Clause 78 stand part of the Bill. The whole clause is misconceived. It is not right in principle and it is totally impractical.

I shall deal with the question of principle first. Has the Minister received advice concerning the human rights aspects of the presumptions that he has made conclusive? No doubt advice has been received. But they are not compatible with Article 6(a). The Minister knows that; there is no need for me to go into a lengthy discussion of the convention. Conclusive presumptions are generally contrary to that convention.

On practicality, we are trying to arrive at something understandable and simple for a jury to follow. No one has suggested that any tribunal other than a jury should decide the issues in a rape trial. There are three issues: intentional penetration, lack of consent and lack of belief in consent. Why cannot a jury simply have those issues put in front of it for it to decide in regard to the particular individual and all the circumstances surrounding them? Why is it necessary to force its thinking in a particular channel?

If there is, for example, evidence of violence at the time of or immediately before the act, it may well be difficult for the jury to come to any conclusion other than that the defendant did not believe in consent. The fact that he used violence is a strong indicator that he did not believe in it. Similarly, with threats of violence either to the victim, her children or any other person, it would again be very difficult for the defendant not to give evidence. He would have to do so, to give an explanation of why that was not an indication of his state of belief at the time.

Again, in respect of the detention of the complainant at the time of the relevant act, I recall a case in which I was involved where a month's detention was alleged. However, a difficulty arose because the complainant had drawn her social security every week. Therefore, the suggestion that she was in prison was a little hard for her to carry through and the charge was dismissed.

However, if a person is detained unlawfully, as a matter of common sense the burden passes to the defendant to give an explanation and to say why he believed that the woman was consenting, even though she was, for example, tied up or in a locked room, or whatever form of unlawful detention may have been employed. We have already discussed the question of the complainant being asleep or unconscious. That is a difficult area, as we have already found out. As for communication of consent, again the defendant has something to explain.

Therefore, it seems to me that the clause seeks to follow the natural thought processes that a jury will have but it will force it into particular channels. The noble and learned Lord knows that I made an attempt to draft what I called a "route to verdict" in relation to this clause, based on the type of routes to verdict that we customarily receive in serious crime cases. What emerged at the end—I appreciate that that was before the amendment tabled by the noble and learned Lord—was a completely unworkable mishmash. It involved the judge having to direct the jury that it had to be sure in respect of the basic facts. Then the burden shifted over to the defendant—it was a balance of probability—and then back to the prosecution, who had finally to make the jury sure.

As I believe I have demonstrated, when all that is put together, the members of a jury will be totally confused. If they are confused, they are likely to come to the wrong decision. At the bottom of it all, as we have seen with this Government's approach to mandatory sentencing, the trouble is that there is a mistrust of the judge and the jury. Instead of allowing these centuries-old institutions—if I dare to refer to judges as a centuries-old institution, although I believe that your Lordships follow what I mean—of the judiciary and the juries to get on with their job and to perform their constitutional function in the proper way, the Government want to interfere and put them through a maze, channelling their thoughts in a direction which the Government hope will reach a guilty verdict. I have said it many times and I repeat it: I do not believe that this legislation will improve the conviction rate, and I oppose the clause in its entirety.

9 p.m.

Lord Campbell of Alloway

Having tabled many of the amendments and having supported those that I have not tabled, at this hour of the night I wish to take up very little time. First, I wholly agree with the criticisms made by the noble Lord, Lord Thomas of Gresford, about the hopeless muddle and the sort of labyrinthine maze without a single silken thread to intelligibility. How will a jury find its way? I express it in a rather short and classical way: I agree with the speech that the noble Lord made—and a very good speech it was.

I have spoken to the subject of Clause 78 and Amendments Nos. 7, 18, 29 and 41. Indeed, I have given notice of my intention to oppose the Question that Clauses 78 and 79 stand part of the Bill. At this stage I need say no more than that. However, a gremlin has crept in. If one looks at the sequence of the Bill, one sees that my Amendment No. 11 to create a specific offence appears before Clause 3. It has been relegated out of order. I make no complaint. It is wonderful how much order has been achieved. However, by leave of the Committee—there are not many Members present—I shall speak to that now and make three points because in moving Amendment No. 2 I said that I would do so.

First, as regards the specific offence in Amendment No. 11, is the current law so inadequate that it is requisite? It is a serious assault. It may or may not cause serious bodily harm. I would ask those who practise in this branch of the law now—it must be 50 years since I last practised in this branch of law on the western circuit, so I defer to noble Lords who may know a little more about it today—whether the law is so inadequate that we have to have a specific offence. Is it because there is a disparity between the occasioning of actual bodily harm and not occasioning it?

Secondly, will the defence of "honest mistake", as I shall put it, still run?

Thirdly—these are not questions to be discussed at length at this hour—is it a lesser offence than rape, as the noble Baroness and I believe to be true, for the reasons that she gave so eloquently? If it is should it have a sentence of, say, 10 years or 12 years, but certainly not a maximum sentence of life imprisonment?

In a sense, Amendment No. 11 is a probing amendment. I do not know what the answer of your Lordships will be. I am not competent with my present knowledge to know what it should be. In due course, when this matter comes back on Report, I shall seek your Lordships' assistance, and, I hope, the assistance of my own Front Bench.

The other amendments I shall speak to are: in Clause 3 Amendments Nos. 13, 14 and 17; in Clause 5. Amendments Nos. 23, 25, and 28; and in Clause 7, Amendments Nos. 35, 37 and 40. I mention those because they represent the structure of the amendments which I moved to Clause 1 carried into the Bill in these clauses.

Each clause has a slightly different connotation. The new offence is placed before Clause 3 because that is where the specific offences are. The first specific offence is assault by penetration. One notices that there is no problem about oral sex there. Again one gets the difficulty of Section 78 or subsection (3) applying. It is the same structure. So I have struck at that. That seems fair enough. I have not dealt with the sentence of life imprisonment because I did not feel competent to do so. It might not be appropriate, but I do not know.

Clause 5 deals with the sexual assault of touching and so on. I take the view that a term of imprisonment of 10 years on conviction on indictment reflects a lesser offence, but whether it is the right term I do not know. I am against an offence of this nature being tried on summary conviction. It is too serious. Certainly, something has gone wrong somewhere. One does not usually have an offence with a 10 years' maximum sentence tried by magistrates.

Clause 7 deals with a very nasty and serious offence. I referred to it elliptically when I was dealing with Amendment No. 1. It is causing a person to engage in sexual activity. My Amendment No. 35 would remove the words "or (3)" in subsection (1)(d). In Clause 7(3) the "reasonable person" applies. However serious an offence—even the ultimate offence of rape— it cannot be tried in this abstract way, which is devoid of the actual intend of the accused.

There again is the problem of the imprisonment, which is, on conviction on indictment … not exceeding 10 years". That does not seem to be unreasonable. My Amendments Nos. 42 and 43 would delete Clause 7(5)(b) and (d). Oral penetration is of lesser gravity. These are all matters for discussion when those amendments are moved. However, as they were grouped together and stood in my name, I felt that I should deal with them and state my position, which is that on Report I intend to move Amendments Nos. 1, 2, 3 and 6. I have not yet decided what to do about the others because we have not yet discussed them.

Lord Lloyd of Berwick

Since the noble Lord has spoken to his Amendment No. 11, as I understand it, I should explain why I did not lend my name to it.

I do not support Amendment No. 11 for two reasons, as I explained earlier. First, I do not accept the drafting—the amendment would be much better contained not as a separate clause but as a new subsection (1) to Clause 3. Secondly. I do not accept the suggested maximum sentence of 10 years. Although forcible sexual penetration of the mouth is, as I explained, in my view less serious than rape, it is nevertheless sufficiently serious to justify a life sentence. That is why I should include it in Clause 3, not as a separate clause.

Baroness Mallalieu

I am grateful that my noble and learned friend the Minister recognised so early in the Bill's passage the defects in the original Clause 78. Although I do not like to carp and should like to welcome what he has done, I am bound to say that I still have grave concerns about his alternative proposal.

Before we broke for the dinner adjournment, when the noble Baroness, Lady Noakes, suggested that "a reasonable man" should be further defined and his characteristics set out in the Bill, my noble and learned friend replied that those matters could be left to a jury, who were well able to consider the circumstances and reach a conclusion. There has been a change during the past hour, because now we are told that the jury need a framework. The framework placed before us is very tightly drafted.

As has been said, human behaviour does not fit neatly into categories. One thing that one learns from experience in the courts and elsewhere—in life itself— is that in human relationships, one must expect the unexpected. If the categories are to be drawn as tightly as at present, there will inevitably be unforeseen circumstances that may lead to injustice.

Like the noble Lord, Lord Thomas, I am especially concerned about the shifting burden of proof. As we have heard, sexual cases are often difficult to prove because they involve one word against another with no independent or supporting evidence. I add to that that many of them now come before the courts not just many months but many years after the events are supposed to have happened. That makes it difficult to prove and establish the facts. In such circumstances, where we are dealing with a serious offence that carries a life sentence, it is wholly wrong to pass that evidential burden and those difficulties onto the defendant.

As I understood my noble and learned friend, he said that his purpose through the clauses was to raise public perception that the law can deliver convictions in such cases and, if I paraphrase him correctly—as I hope that I do—to send a signal about what sexual behaviour is and is not acceptable. In reality, all the categories that he described in the new clauses are circumstances in which a jury is, one would have thought, almost certain to conclude that the defendant was well aware that the complainant did not consent. In other words, they are precisely the sort of cases in which a conviction is likely in any event.

We are therefore once again producing what is in effect a public relations exercise, but is unlikely to lead to an increase in conviction rates. Indeed, for the reasons just given, it is likely to lead to difficulty and confusion because we are importing difficulties with the shifting burden of proof. It is all very well for us to say that it is easy for a jury to be told by a judge that one thing must be proved by one side and another by the other. It is not so easy to apply those burdens correctly when a jury is also dealing with complicated and difficult decisions about facts—often based on remarkably little evidence.

So although I understand what my noble and learned friend is trying to achieve, and although we all want the public's confidence raised, I am concerned that the law must meet the needs of justice. I fear that the provisions, even as redrafted, are likely to have the opposite effect to that advanced by my noble and learned friend.

9.15 p.m.

Lord Skelmersdale

As a non-legal onlooker, I am amazed. I referred earlier to trying to be a putative—to use the word of the noble Lord on the Liberal Democrat Benches—juror. In such cases, what does the noble Baroness, Lady Mallalieu, believe causes a jury to fail to convict? Is it because the jurors are not well instructed by the judge in the case? Is it because they do not believe the evidence given to them? Or is it because they do not comprehend the concept of the reasonable person— whether the future reasonable person suggested in the Bill—or the reasonable cause with which we have lived until now?

Baroness Mallalieu

I have not come across offences in every category, but I have been involved in cases comprising some of them. In such circumstances, it has not been my experience that juries fail to convict. They already convict in such circumstances, but we are now trying to import difficulties that may make that unlikely in the future. I say that because we are prescribing very closely circumstances that may not fit the bill.

Lord Skelmersdale

In other words, the noble Baroness trusts the jury.

Baroness Mallalieu

I certainly do. In this particular circumstance, it seems wholly wrong to set out what my noble and learned friend wants to do in a tight framework. It is much more important for the jury to look at the issues; that is to say, whether she consented, and, whether the defendant believed that she was consenting at the time. In a sense, that is a distraction. It puts on him a burden to deal with matters that the jury can already deal with under those headings.

Lord Thomas of Gresford

The noble Lord will surely appreciate that over quite a number of years public confidence in the courts has been diminished, not because of what has happened in the courts, but because of statements by successive Home Secretaries and politicians seeking votes and utilising their public prejudices in that way. It is far better for the Government to try to imbue in the public confidence in the judiciary and in juries rather than confidence in the drafters of this piece of paper. Those of us who have read it, and who know that it is clearly put forward by people with no practical experience, have no confidence in it at all.

Lord Skelmersdale

None the less, am I being naïve in suggesting that the piece of paper to which the noble Lord, Lord Thomas of Gresford, refers—namely, this Bill—is the basis of the direction of the judge?

Lord Thomas of Gresford

It is not at the moment. It is left to the good sense of the jury to come to the proper conclusion. That is how it should be; it is where the trust should lie. The Bill says that we do not trust the jury to think rationally and reasonably. We have a democratic institution of 12 people taken from the community with no axe to grind and various points of view coming together to focus on the specific issue. They carry no baggage about the issue and are not case hardened. They look at the issue and decide what is just. A jury will not necessarily come to the same conclusion as a lawyer would reach. I am sure that the noble Lord, Lord Skelmersdale, would approve of the proposition that, in this field, lawyers' decisions may not be as good as those of a democratic institution— juries. I always have at the forefront of my mind the fact that the first things to go in any totalitarian regime are juries.

Lord Campbell of Alloway

My noble friend Lord Skelmersdale misunderstands the fundamental issue that we have been discussing. I know that he has been present most of the time.

The fundamental issue is not whether the Bill, or paper, as he put it, would constitute, as he put it, the directions that the judge would give to the jury. The straight answer is that, if the Bill became law, it would—but only in the sense that the judge would have to direct the jury in law as to the meaning of Clause 78, to which we are all opposed because it would he unintelligible.

Lord Skelmersdale

I described myself as possibly being naïve; I am not that naïve.

Lord Lloyd of Berwick

I apologise for not having heard what the Minister said in moving the amendment. The real question is the extent to which we are prepared to trust the jury to do its work. I have tried a number of rape cases, and I never found any difficulty in explaining the law to the juries. Nor did I ever disagree with the verdict reached.

Lord Falconer of Thoroton

My sympathies are with the noble Lord, Lord Skelmersdale. I may have misnoted it, but I think that the noble Lord, Lord Thomas of Gresford, said—I accept his analysis—that the three essential elements in a rape case were intentional penetration, lack of consent and lack of belief. The Committee must not hold either of us to that being universal, but that broadly summarises it.

The noble Lord, Lord Thomas of Gresford, also said that, if the facts set out in Clause 78(3) were shown to be present, the burden passed, as a matter of common sense, to the defendant to show that he believed that the victim consented. That is precisely what this clause does.

Lord Thomas of Gresford

I did not say that. I said that the defendant had to give evidence about it in such circumstances. He certainly has to explain why he holds the belief that he does, if such circumstances arise. That does not mean that he has the persuasive burden.

Lord Falconer of Thoroton

One can understand why laymen might be confused. I have written down that, if the circumstances are present, the burden, as a matter of common sense, passes to the defendant. I accept that the noble Lord, Lord Thomas of Gresford, did not say that the burden, as a matter of common sense, passed to the defendant, but I understood that to be the thrust of what he said, and so did the noble Lord, Lord Skelmersdale.

Is that approach too complicated? A judge might say to the jury, "If you are satisfied that intentional penetration took place; if you are satisfied that the victim did not consent; and if you are satisfied that, immediately before the act of penetration took place, the victim was subjected, to the knowledge of the defendant, to threats of violence, it is for the defendant to satisfy you on the balance of probabilities that he believed that she consented". That is what the clause amounts to.

Lord Campbell of Alloway

It is not like that. The defendant must satisfy the jury that his conduct was such as would match the conduct—or characteristics, if you like—of a reasonable man. It is no good saying that he must do anything else: under Clause 78, he must do that. How can he do it without evidence?

Lord Falconer of Thoroton

In the light a the amendments, the only effect of Clause 78 is that if the penetration without consent is established and one or other of the circumstances under Clause 78(3), the burden shifts to the defendant to establish, on the balance of probabilities, that he believed that the victim consented.

As much as one tries to make that complicated, it is not. I utterly and completely repudiate what the noble Lord, Lord Thomas of Gresford, is saying; that this reflects an inability to trust the judges or the juries. It is far from it. We believe that the juries, properly instructed by a judge, are perfectly capable of understanding that question. I am supported in my approach by the fact that the noble Lord, Lord Thomas of Gresford, described what we are doing as, in effect, reflecting common sense. As the noble Lord said, in the circumstances that I described, surely the defendant has something to explain. If he has something to explain, let us place the burden, on the balance of probabilities, upon him. It reflects a straightforward shifting of the burden to where it should be.

The noble Baroness, Lady Noakes, referred to workability. I explained how we think it should work. She must consider whether she thinks that that is workable. She said that it is a non-exhaustive list. But every single circumstance cannot be covered; we covered the main circumstances in relation to it.

As regards conclusive presumption, the noble Baroness, Lady Noakes, said that there are "grey areas". She cannot envisage any circumstances in which relying only on third party consent could lead to the situation arising. Neither can we. If she can think of an example, obviously we shall consider the circumstances in relation to that.

Baroness Noakes

If neither I nor the noble and learned Lord can think of a situation, why do we need that part of the clause in the Bill?

Lord Falconer of Thoroton

It leads to justice because it ensures that the right result is achieved. I indicated that Clause 78(7) and (8) reflect the existing law. The possibility referred to by the noble Baroness was that consent would have been given, had it been asked for, if there had not been a deceit. I cannot believe that the noble Baroness wishes a possible defence to arise in rape cases in which a defendant might say, "Although she did not consent, had I put it in a slightly different way she would have consented". I do not believe that that is a sensible amendment to the law.

The noble Lord, Lord Thomas, asked whether the Government have taken advice. Yes, indeed we have taken advice. We are advised that it is consistent with Article 6(a). I have so certified on the face of the Bill.

The noble Lord, Lord Campbell, deals with a number of other points. As he telegraphed to us before supper, he was going to deal with his Amendment No. 11, which is about dealing with penetration of the mouth. We went through that issue in some detail earlier. The Government believe that it is right to treat penetration of the mouth as a form of rape. That is why that has been put in Clause 1.

The noble Lord's approach involved making it a separate offence. With respect to the noble Lord, while we carefully considered that approach, we concluded, particularly on the basis of the evidence received by Setting the Boundaries, that the right approach was to make it part of rape.

In the light of my remarks, I hope that the noble Baroness feels able to withdraw her amendment.

Lord Thomas of Gresford

Perhaps I may start again on the question of the burden of proof. As the noble and learned Lord knows, there is an evidential burden and there is a persuasive burden. It may be that the evidence of the Crown will require, in practice, the defendant to get up and give an explanation. That can be put into a statute formally. The evidential burden is placed upon the defendant and he must give some evidence.

But that is unnecessary. All that must happen is that sufficient circumstances arise for the defendant to be called upon to give an explanation. When he gives his explanation, the prosecution must disprove it. The burden of proof is on them to make the jury sure that his explanation is untrue. That is all I was saying.

The Bill raises shifting burdens of proof. If the jury are satisfied that there was intentional penetration, the second question is whether they are satisfied that the complainant did not consent. On a simple view, the judge would then say to the jury, which is provided for in Amendment No. 8, "Are you satisfied that he did not believe reasonably in her consent?". That is all.

Under this Bill, the judge has to say to the jury, "You've got over the first two hurdles. Let's come to the third point. If certain circumstances are proved so that you are sure about them, the burden shifts over to the defendant to prove that he did believe".

Let us take subsection (3)(a), for example. The judge would say to the jury, "Are you satisfied that any person was at the time of the relevant act using violence against the complainant or causing her to fear that immediate violence would be used against her? The prosecution has to prove that, members of the jury. Or if you are not satisfied about that, you might be satisfied under subsection (3)(b) that he was causing the complainant to fear violence. Are you sure about that? If you are sure about that, pause there for a moment. You've then got to consider this. It's for the defendant to satisfy you on a balance of probabilities. Now, hang on a minute, I've got to explain to you the difference between making you sure and satisfying you on the balance of probabilities. Has the defendant satisfied you on the balance of probabilities that he did believe that the complainant consented? If he has, well, he's not guilty. If he has not, you've then got to consider the matter as a whole. Finally—the burden of proof is on the prosecution—are you sure that all the ingredients of this offence are complete?".

In other words, a number of stages are added on to the simple framework that I am suggesting in Amendment No. 8; namely, the three simple ingredients. Those stages are: asking the jury to consider additional factors; telling them they have to be sure about them; explaining the transfer of the burden of proof; explaining what that burden of proof is; and then giving them final directions about it all. How this will lead to more convictions or fewer acquittals, I utterly fail to understand.

On Question, amendment agreed to.

9.30 p.m.

Lord Thomas of Gresford moved Amendment No. 8: Leave out Clause 1 and insert the following new Clause—

SEXUAL VIOLATION (1) A person (A) commits an offence if he does an act of sexual violation by rape or by unlawful connection. (2) Sexual violation by rape is where A penetrates the vagina or anus of another person (B) with his penis—

  1. (a) without the consent of B, and
  2. (b) without a reasonably held belief that B consents to that penetration.
(3) Sexual violation by unlawful connection is where a person (A) has sexual connection with another person (B)—
  1. (a) without the consent of B, and
  2. (b) without a reasonably held belief that B consents to that sexual connection.
(4) "Sexual connection" means—
  1. (a) connection occasioned by the penetration of the genitalia or the anus of any person by—
    1. (i) any part of the body of any other person, or
    2. (ii) any object held or manipulated by any other person, otherwise than for bona fide medical purposes, or
  2. (b) connection between the genitalia of any person and any part of the mouth or tongue of any other person.
(5) A person guilty of an offence under this section is liable, on conviction, to imprisonment for 7 years.

The noble Lord said: I have already given enough of an introduction to this, blazoned in the course of our discussions today. Let me try to explain the purpose of a number of aspects of the issue.

Amendments Nos. 8 and 10 must be taken together because, instead of the single charge of rape, I am suggesting in these two amendments that there should be two levels of what I have described as "sexual violation". Why do I do that? There are a number of practical reasons. The first is that, if you have a simple charge of sexual violation, there are fewer matters to be proved. Secondly, if a person is charged with aggravated sexual violation and the prosecution think it fit to accept a lesser charge, there is a considerable saving, in that the complainant is not required to give evidence.

Earlier today the noble Baroness, Lady Howarth of Breckland. and other noble Lords spoke of how traumatic it is for the complainant, the victim, to have to describe her experiences in court. That is a matter which is always in the forefront of the minds of those advising a defendant charged with rape. If there is any way of avoiding calling the complainant and thus not subjecting her to the stress and trauma of giving evidence, then that route should be taken. So the two stages of rape that I propose are the simple offence followed by the aggravated offence. I shall go through those in some detail.

I propose that the term "sexual violation" should be used rather than the word "rape". The label is important, as the noble Baroness, Lady Mallalieu, pointed out this afternoon. It is my view, based on experience, that the word "rape" itself places a heavy burden on the jury when considering the verdict. Jurors know that the crime of rape carries a heavy sentence. In cases involving date-rape, acquaintance rape or marital rape, they know that if they find the defendant guilty the level of sentence will be four or five years' imprisonment and possibly considerably more.

If we were to adopt the New Zealand approach of describing the offence as sexual violation which can be committed in two ways, then something—I wonder what is the correct word, the stigma or the force—of the word "rape" would be removed from the consideration of the jury. It would be concerned with sexual violation either by rape or by unlawful connection. I have defined sexual violation by rape as penetration by A of the vagina or anus with the penis, (a) without the consent of B, and (b) without a reasonably held belief that B consents to that penetration".

Let us pause for a moment. If the words "reasonably held belief" are used, then, first, it is possible to get rid of the Morgan defence of "unreasonably held belief and, secondly, it is possible to remove from the Bill altogether the provisions concerning the presumptions that we were discussing a moment ago and which we find so objectionable. So the words, without a reasonably held belief that B consents to that penetration provide a simple concept which can be explained to a jury. What it is important to note is that by using the phrase, A will not be compared with the hypothetical "reasonable person". Whether or not he shares those characteristics, the jury is asked to look at A; that is, to focus on the defendant. Did A believe that B consented? Did A believe that reasonably? Here the judge may say, "Members of the jury, the question of whether the belief was reasonable is a matter entirely for you. You can look at A, consider who he is and what is his background. You can consider what signals were given to him and what inquiries he may or may not have made. Then you can ask yourselves whether, in your view, the belief that A held in B's consent was reasonable. It is a matter for you".

That is what has been described in New Zealand as an "objective/subjective" approach. In other words, it introduces the concept of what is reasonable but does not compare the defendant with the hypothetical "reasonable person"; the jury look at a person in the context of the offence alleged against him.

So that is sexual violation by rape. Sexual violation by unlawful connection is framed in the same way. It is, where a person (A) has sexual connection with another person (B) … without the consent of B, and … without a reasonably held belief that B consents to that sexual connection".

Again, it is a simple matter on which to direct jurors and for them to understand.

"Sexual connection" does not relate merely to oral sex, although, as the Committee will see, that is covered in the proposed new Clause 1 (4)(b). New subsection (4)(a) includes the penetration of the genitalia or the anus by, any part of the body of any other person, or … any object held or manipulated by any other person, otherwise than for bona fide medical purposes".

So that expands the concept of penetration to objects and to parts of a person's body other than the penis. As I say, new subsection (4)(b) refers to oral sex.

For this unaggravated offence, I suggest a maximum sentence of imprisonment of seven years. Why seven years? Because, at the moment, simple rape carries a sentence of approximately five years. A maximum of up to seven years for simple rape without any aggravating features is consistent with the current level of sentencing.

Amendment No. 10 refers to circumstances which aggravate the simple offence into something more serious and which can carry a sentence of life imprisonment. Subsection (1) states: A person (A)commits an offence of aggravated sexual violation if he does an act of sexual violation by rape or by sexual connection"—

that refers back to the previous new provisions— in aggravated circumstances, and A knows that those circumstances existed

The aggravated circumstances I have suggested are taken from Clause 78. These include the use of violence or the fear of violence; the complainant being unconscious, unlawfully detained or disabled by an incapacity to communicate; deception; impersonation or the complainant being under the age of 13. If any of those aggravated circumstances apply, the more serious offence is committed, carrying a sentence of life imprisonment.

I make no distinction between what I described earlier as "stranger rape" or "acquaintance rape" or "marital rape". The proposed clauses as drafted make no distinction. All that is necessary to bring in the more serious aggravated offence is that these aggravating circumstances exist. One can imagine, for example, that, in a case of stranger rape, violence or the fear of violence will be used. So immediately stranger rape will come into the heavier category.

Some of the other aspects will always apply in cases of stranger rape in one way or another—they may also apply in cases of acquaintance rape and marital rape—and will increase the sentencing power of the court up to life imprisonment. That means that in order to find someone guilty of aggravated sexual violation by rape the prosecution must prove penetration; that it was without the consent of the complainant; and that it was without A's reasonably held belief that the complainant was consenting. That is simple, understandable and easy to explain. There are no presumptions, no shifting burdens of proof, no hypothetical reasonable persons with or without the characteristics of the complainant. We can trust a jury to understand this and bring home a correct verdict in the appropriate case.

Amendment No. 19 would remove Clause 3. All that is required to deal with the sexual violation of a child under 13 is to have a new clause stating: For the purposes of sections 1 and 2—

namely, sexual violation by rape or unlawful connection or aggravated sexual violation— (a) a child under the age of 13 is incapable of giving consent; and (b) the knowledge or belief of A as to that child's age is irrelevant".

Again, those are simple, easily understandable concepts which can lead to justice being done. In addition, I oppose Clause 4.

Amendment No. 22 deals with Clause 5 on sexual assault and would leave out subsection (1)(d) which provides that subsection (2) or (3) applies. Subsections (2), (3) and (4) deal with the reasonable person point and the Section 78 point that we discussed in relation to rape. All that would need to be proved for sexual assault is that A commits an offence if he intentionally touches another person, the touching is sexual, B does not consent to the touching, and, as Amendment No. 22 would specify: (d) A does not reasonably believe that B consents".

"Reasonably" implies an objective element but it still looks at the person and the circumstances and what could be expected to be his belief in those circumstances and having regard to who he is. Again, that would get rid of the Morgan defence but do it in an easily comprehensible and simplified way without all the difficult mechanisms contained in the Bill as drafted.

The same amendment would be made to Clause 7, which is about causing a person to engage in sexual activity without consent. Amendment No. 34 would omit subsections (1)(d). Subsections (2), (3) and (4) contain the reasonable person test, the Section 78 presumptions and whether they are rebuttable or conclusive. The clause states that a person commits an offence if: (a) he intentionally causes another person (b) to engage in an activity, (b) the activity is sexual, (c) B does not consent to engaging in the activity".

Under Amendment No. 34, paragraph (d) would read: A does not reasonably believe that B consents".

If anybody thinks that we on these Benches are in any way trying to weaken the Government's thrust to get more convictions or whatever, they are entirely wrong. We are much more concerned to ensure that there are fewer acquittals when there should not be acquittals and fewer verdicts of guilty when there should not be verdicts of guilty. We believe that simplification and clarity will do that and not all these complicated mechanisms in the Bill which, as we have said from the beginning, have been drafted by people without practical experience of how the court works. I beg to move.

Baroness Walmsley

I support the group of amendments spoken to by my noble friend Lord Thomas of Gresford. They set out clearly a range of serious offences and label them in a way of which I believe the noble Baroness, Lady Mallalieu, would approve and that would be understood by the general public at large. The amendments would give the courts the tools that they need to prosecute the guilty and give them an appropriate sentence.

I cannot compete with noble and learned Lords in your Lordships' House or with noble Lords who are also learned. I speak just as a woman who, like most women, has at some time feared that one day I could be raped, as can any woman. I considered the group of amendments we are discussing with those thoughts in mind. I believe that rape is rape. I also believe that if the person who is raped knows the rapist that is even worse as it constitutes an abuse of trust. I am satisfied that the set of offences so clearly described by my noble friend will ensure that those who are guilty of rape are more likely to be convicted and that they will avoid the possibility of erroneous convictions of the innocent.

The purpose of the group of amendments is not to propose anything that changes our belief that rape is rape, whether or not the victim knows the rapist. However, they lay down a clear framework of law which will give the courts the tools for which the noble Baroness, Lady Mallalieu, has called and will achieve the objective of getting sound convictions of those who are genuinely guilty of rape. I believe that the amendments to which my noble friend has spoken will achieve that objective. That is why I support them.

I hope that members of victim support groups who have considered my noble friend's amendments carefully will agree that their purpose is clear and that they would achieve what we all want; that is, genuine convictions of genuine rapists and an avoidance of unsound convictions.

Lord Campbell-Savours

The more I listened to the debate on Second Reading and the more I listen to this debate, the more I am convinced that the whole Bill should have been subject to prior scrutiny. There are areas of the Bill which any reasonable person listening to the debate must recognise will lead to difficulties in the courts.

The proposals to which the noble Lord, Lord Thomas of Gresford, has just spoken clearly provide for a much simpler arrangement which would be far more easily handled by juries, would be far more popular with the legal profession and in my view—I am not a lawyer—would undoubtedly lead to more convictions of people who are guilty and to the release of more people who are innocent.

The Government set up a working party which produced a report following a joint inquiry into the investigation and prosecution of cases involving allegations of rape. The report was produced jointly by the Crown Prosecution Service and Her Majesty's Inspectorate of Constabulary and was published in April last year. Why is it that in its 98 pages it never managed to address the issues we are discussing? The original remit made absolutely clear that it was to consider the high level of acquittal in rape cases. The remit is quite specific and states: It was against this background that Her Majesty's Crown Prosecution Service Inspectorate and Her Majesty's Inspectorate of Constabulary were asked to hold a joint inspection, the aim of which was to analyse and assess the quality of the investigation and prosecution by the police and the crown prosecution service of allegations of rape, and to attempt to identify the causes of the decreasing conviction rate". Its main findings dealt with training, inadequate incident centres, a lack of suitable FMEs and their retention, inconsistency in recording of data, poor investigation, a lack of presentation expertise, poor victim support services, a deficiency in court procedures, inadequacy in provision of information to victims and inadequate guidance to prosecutors.

When it should have considered the question of the crime itself, it had absolutely nothing to say in all its 98 pages. Furthermore, in the Government's response, the Action plan to implement the recommendations of the HMCPSI/HMIC joint investigation into the investigation and prosecution of cases involving allegations of rape, we find no reference whatever to the question of the crime.

Why did those who were appointed to deal with those matters fail to address that absolutely central issue? I can only presume that it was because of political correctness. I am sorry to say it, but I see no other possible explanation. The project steering group had representatives from the Crown Prosecution Service, the medical profession, the Inspectorate of Constabulary, the Civil Service, policemen, the world of academia, assault and forensic centres and representatives of victims. However, there were no lawyers on the steering committee that conducted the inquiry, nor were there any representatives of juries. I do not know the name of the organisation that represents juries, but why were juries not represented? Why were they not asked why they believed that there was a high level of acquittal? I am sure that many of the arguments that we are having today would have surfaced, and would have been addressed in the course of the inquiry.

We are about to produce legislation that will not work because it has not been fully considered. Will the Government, even at this late stage, take on board all the comments made today by all the eminent members of the legal profession? They are supported outside by great numbers of people, who are watching our proceedings and saying that we are making fools of ourselves in the way in which we conduct our business on these matters. My noble and learned friend has clearly mastered the Bill and understands it in detail, but he must reassure the House. He must tell us why he believes that there will be an increase in the rate of convictions and a reduction in the rate of acquittals. We need absolute assurances that that will happen and be told in detail why he believes that it will happen.

In the joint report, there is an interesting section dealing with the review of cases. The recommendation from the joint committee suggests that prosecuters should, insert a standard paragraph in instructions to counsel, requesting a written report in any case involving an allegation of rape which results in an acquittal … Any written report is used to complete an adverse case report, setting out the factual and legal reasons for the acquittal … The adverse case report is used to discuss with the police any lessons to be learned". In that recommendation, we may have the embryo of a report that might be used by Parliament in future in considering these matters. However, that is true only as long as those who draw up these comments and include them in these reports are prepared to talk about deficiencies in the law itself, particularly in relation to how juries treat rape. In a Question last November, the noble and learned Lord, Lord, Ackner, described cases of date rape in which juries would not be prepared to reach a verdict of rape.

However, in their response, the Government accepted the recommendation of the joint committee. They said that the, CPS will draft a paragraph for instructions to counsel to reinforce the need for sufficient written information from counsel to inform the preparation of the adverse case report in such cases". As a timeframe of January 2003 was also given, I presume that that recommendation has been implemented and that that advice is being given so that the reports can be produced. Will my noble and learned friend comment on that and tell us whether the reports might include information about deficiencies in the law and perhaps lead us down the route so ably advocated by the noble Lord, Lord Thomas of Gresford?

10 p.m.

Baroness Noakes

I should like first to comment on the remarks of the noble Lord, Lord Campbell-Savours, on pre-legislative scrutiny. We on these Benches, and I believe also those on the Liberal Democrat Benches, believe that that would have been an appropriate way to treat this Bill. As the noble Lord said, the further we proceed with this Committee, the more evident that fact will become. I tell the noble and learned Lord that it is not too late.

I turn to Amendment No. 8, which was moved by the noble Lord, Lord Thomas of Gresford. I pay tribute to him for the extremely thoughtful way in which he approached this matter. He made an extremely impressive speech on Second Reading and we should be grateful to him now for his innovative approach. I am particularly attracted by the simplicity of that approach. I cannot tell him that we accept completely the nature of the amendment. I shall not presume to comment on the legal qualities of the new clause—that would be above my pay grade—but I should like to comment on a couple of aspects.

In particular, I think that we are concerned about creating a lesser offence of rape and sexual violation. We would find it difficult to support the introduction by the back door—or indeed the front door—of a date rape offence. We accept, as was found in Setting the Boundaries, that acquaintance rape is just as serious for the victim as stranger rape. It is therefore difficult to believe that the right approach would be to treat it as a lesser offence. If there were a lesser offence, a seven-year maximum sentence would also begin to seem particularly low.

As for the other major issue, we return to our old friend reasonableness. When I saw first Amendment No. 8, I was not clear whether it proposed an objective test or a subjective test. However, the noble Lord, Lord Thomas, has explained that it is an objective/ subjective test. Every noble Lord asserts with great conviction that their particular version can be put to a jury. Those of us not accustomed to putting matters to a jury find it difficult to say whose version of how to present matters would be most easily understood and workable. I put that question mark over that aspect of the amendments from the noble Lord, Lord Thomas.

Although I shall take a little convincing, I commend him on giving us a more innovative way of considering how to structure the offence in a way that juries can easily understand. That is how we will ensure conviction of the right people and not acquittal of the wrong people.

Lord Lloyd of Berwick

First, I want to say briefly that I agree with almost all the points made by the noble Lord, Lord Campbell-Savours. I also pay tribute to the work that the noble Lord, Lord Thomas, has put into his amendment. Of course I agree that we should all aim for simplicity, and the amendments certainly have that merit when compared with the Bill. However, they do not have any greater merit than the law as it stands.

The noble Lord and I agree that, for a person to be convicted of a crime, he must have a guilty mind. In the law as it stands, the guilty mind consists either of knowledge that the woman is not consenting, or recklessness—in other words, indifference to whether or not she is consenting. What exactly is the mens rea in the offences that the noble Lord now proposes? I have some difficulty in identifying that state of mind.

Lord Falconer of Thoroton

I shall deal first with the points made by my noble friend Lord Campbell-Savours. In January 1999 the then Home Secretary set up a review. It took 14 or 15 months—that was quite right, because it consulted widely—and reported in April 2000. Setting the Boundaries was published and widespread consultation was sought in relation to it. In November 2002, a further document was published indicating the conclusions. The review has taken considerably over three years.

One will not reach a point when lawyers are not able to debate a better way to deal with matters. I do not think that the right course is not to proceed now with introducing a Bill. Indeed, if one did, there would be very considerable dismay from a large number of people, such as the noble Lord, Lord Rix, who have pressed for such a Bill for a considerable time. If one thought that one would get more agreement from the lawyers, it would be worth waiting, but I expect that one would not.

Lord Campbell-Savours

I do not want to pre-empt my noble and learned friend's speech, but have the ideas put forward by the noble Lord, Lord Thomas, been considered before? When the Bill was drawn up, were people in the department thinking on those lines and considering producing legislation of that nature? Have they conceived of the ideas previously?

Lord Falconer of Thoroton

No one could have thought of the brilliance of the ideas of the noble Lord, Lord Thomas of Gresford. However, it is perfectly possible to produce such a structure. Five principles need to apply in constructing the provisions with which are dealing. The first is simplicity, and the second is the ability to be understood by the public. We agree with the noble Lord in relation to those two. The third is that the offence matches the level of criminality, a point made by the noble Baroness, Lady Walmsley. The fourth is that, in relation to those under 13, consent is presumed not to be present. The fifth is the objective element in relation to consent. The noble Lord agrees with the last two of those.

Do the noble Lord's amendments amount to a better proposal than ours? If they do, we shall certainly consider them. Our proposal divides the sexual offences into three—rape, assault by penetration, and sexual assault. The last of those covers offences not covered by the first and second. The noble Lord's amendments amalgamate the existing offence of rape with some of the more serious elements of the existing offence of indecent assault. In that way, the new sexual violation offences would cover non-consensual penetration of the vagina or anus with the penis or any other object, and also sexual assault by contact between the mouth of one person and the genitals of someone else.

I note the way in which oral penetration has been expanded in the noble Lord's amendments to cover non-penetrative activity such as cunnilingus. The maximum penalty for those offences would be seven years, unless the assault was aggravated by any of the factors listed in the proposed new Clause 2, including that the victim was a child under 13.

Therefore, the noble Lord's offence does not have the simplicity of our offences in relation to what is rape and what is not. The noble Lord has amalgamated the offence of sexual violation by rape with that of any other form of unlawful connection. That is the way that he defines it. Therefore, first, his offence does not have simplicity in relation to severity, and, secondly, so far as concerns understandability, terms such as "unlawful connection" are not everyday language. Everyone is familiar with the term "rape", and terms such as "penetration" are also easily understood.

I cannot see the merit of grouping together all these types of offending behaviour in this way as the result would be rather less clear; nor am I convinced that oral-genital touching is as serious as oral penetration, as would be the effect of Amendment No. 8, and that it should be brought within the same category as rape. Therefore, I do not believe that the scheme of the noble Lord, Lord Thomas of Gresford, is as good as the one proposed on grounds of either simplicity or understandability.

I was surprised by the intervention of the noble Baroness, Lady Walmsley. Both she and the noble Baroness, Lady Noakes, said—I thoroughly agree with this—that acquaintanceship rape or rape by someone whom you know, even though it may not involve violence, can be just as disturbing and traumatic as stranger rape. That is not reflected at all in the approach of the noble Lord, Lord Thomas of Gresford. If the offence is not carried out under "an aggravating circumstance", then seven years is the maximum sentence, even though it is an acquaintanceship rape and causes as much damage.

I have to agree with the noble Baroness, Lady Noakes. She will recall, as I do, that at Second Reading the noble Lord, Lord Thomas of Gresford, proposed that the right way to deal with the matter was for there to be a date rape offence—that is, an acquaintanceship rape offence—and another offence. I opposed that on the grounds that the noble Baroness, Lady Noakes, put forward this evening. By reducing the offence in the unaggravated circumstances, that is precisely what the noble Lord seeks to do.

Lord Thomas of Gresford

I said in terms that I make no distinction between date rape, stranger rape and marital rape. The offence comes within simple rape if it does not have aggravated circumstances. But if violence, fear or any of the other matters that l listed are used in a date rape, it is an aggravated offence carrying a life sentence. It is a misconception of my argument to say that Amendment No. 8 refers to date rape and that the others refer to something else. They are all treated equally. It is possible for a stranger rape not to involve aggravated circumstances. That is difficult to envisage because normally fear is involved, but it is possible. Certainly marital rape can take place in that way.

I entirely agree with my noble friend Lady Walmsley, first, that rape is rape and is a serious offence and, secondly—I believe I used the words earlier today— that date rape can involve a breach of trust and be just as psychologically damaging as violence with a stranger. I have said that.

Lord Falconer of Thoroton

I want to make three points in relation to that. First, it appears that the noble Lord has changed his position since Second Reading. Secondly, how is the case to which the noble Lord's noble friend referred to be dealt with under his scheme? What happens where there is no violence but simply intimidation and terror as a result of a long relationship leading to damage? Seven years is the maximum sentence in relation to that. The noble Lord shakes his head, but I ask him to identify within 'which provision of aggravation it fits. My third point is that I am comforted by the fact that the noble Baroness, Lady Noakes, took exactly the same view as I did.

Therefore, in relation to the third test, in my view the proposal is not able to deal with the degree of wrong that rape sometimes involves. In relation to proposition number four, the amendment deals with the under-13s.

10.15 p.m.

Earl Russell

Can the noble and learned Lord take on board that if two couples—one who know each other and one who do not—do the same thing and are treated equally, this does not make a distinction between them? I support the amendment warmly. If it said what the noble and learned Lord thinks it says I certainly would not.

Lord Thomas of Gresford

The noble and learned Lord asked me specifically where there is reference to a long-term relationship. Subsection (2)(a) in Amendment No. 10 refers to using violence.

Subsection (3) refers to a series of acts, which is exactly the same wording as in the Bill. Clearly, it covers exactly those circumstances.

Lord Falconer of Thoroton

The example I gave was one where the fear is such, where there is no immediate threat of violence, that the victim succumbs and feels totally violated by what has happened. It is about as serious an offence as it could be and it is not covered in those circumstances.

On the fifth item—the objective element—as the noble Baroness, Lady Noakes, again accurately said, we both claim the same for our reasonableness test. We appear to be entirely in agreement about what the reasonableness test seeks to achieve. The noble Lord said, "Our test can be put simply to the members of the jury. They will be able to understand it and come to a conclusion". We say precisely the same for ours.

We have set out in our provision a detailed explanation of how the test works. On this point we think that a clear statement in statute is particularly helpful for everyone: defendants and jurors alike. We want our new legislation to send a clear message that it is the defendant's personal responsibility to satisfy himself on the issue of consent. The way in which he meets that requirement will obviously vary from case to case, but it will always require him to do something positive. We believe that referring to the actions of the defendant is a helpful way of explaining this in law and is in line with the approach suggested by Setting the Boundaries. Like the noble Lord, we believe that the right approach is to leave it to the jury to decide the question. I pay tribute to the innovation and thoughtfulness of the noble Lord, Lord Thomas of Gresford, and to his change of position from his Second Reading speech. However, applying the five tests we have, with the greatest respect we believe that our provisions do this better.

Lord Lucas

I would be fascinated to hear the Minister's reply to the question asked by his noble friend concerning reports on trials which did not succeed.

Lord Falconer of Thoroton

I am not in a position to give a detailed reply. Perhaps I may write to the noble Lord. I apologise for not answering in the course of my speech.

Lord Skelmersdale

I realise that the Committee wants to adjourn as soon as possible. The noble and learned Lord was good enough to answer a question of mine at Second Reading at col. 880. He commented on the 10-year sentence for date rape, the maximum life sentence for rape and the conjunction between the two. Clearly, life does not always mean life in these particular circumstances. It would help the progress of the Bill to know whether the 10 years is to run consecutively in the Government's view, or whether it is in addition to the sentence.

Lord Falconer of Thoroton

I am afraid that I have completely failed to understand the question. Consecutive to what, and to what particular 10-year sentence does the noble Lord refer? I do not have before me the issue of Hansard to which the noble Lord refers. Perhaps I may write to him with an answer.

Lord Campbell-Savours

Does my noble and learned friend intend to go back to the department between now and Report and further consider the amendments moved by the noble Lord, Lord Thomas of Gresford? Will he consider them again with his officials to see whether, on consideration, they provide a better way forward?

Lord Falconer of Thoroton

We have had an opportunity to consider the amendments. I shall consider all that has been said during the debate. The problems with the proposals are those that I, the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Noakes, have indicated. We shall certainly consider them. However, I should make it absolutely clear that at the moment there are some insurmountable hurdles in the way of it being a sensible proposal.

Lord Lucas

I urge one last time the virtue of the formulation of the noble Lord, Lord Thomas, without a reasonably held belief". It is one simple phrase to replace two subsections and 40 words. As a potential juryman I find it much easier to understand. I am sure that many others would too.

Lord Thomas of Gresford

I am greatly heartened by the support of the noble Lord. I respectfully agree with him and have nothing to add.

I have already dealt with the date rape point. I do not deal in Amendment No. 8 with date rape and in Amendment No. 10 with other types of rape. The aggravating circumstances do not relate to the particular way that rape occurs. If I said something different at Second Reading, then I have changed my position. I shall go back and read it because I do not recall ever being an advocate for a specific date rape charge. Perhaps I said something which caused the noble and learned Lord to believe that. He probably has it in front of him, but I shall check it and find out.

The noble and learned Lord, Lord Lloyd of Berwick, asked me what would be the mens rea of my proposed offences. It would that A does not have a belief that B consents to the penetration, but it is subject to the test of reasonableness. In a number of jurisdictions in the Australian states, in New Zealand, in Canada and I believe in parts of the United States a test of reasonableness is applied to that belief. However, I have already indicated to the Committee— and I have been supported by every lawyer with hands-on experience of rape cases who has spoken today— that I do not know and have not come across any situation where an unreasonable but honest belief in the consent of the complainant has been urged as a defence. It is absolutely impossible to find out whether a jury has ever reached a conclusion about a defence that in my experience has never been urged. I cannot envisage circumstances where such a defence has succeeded in the past.

So the Morgan issue is really a red herring. I do not think it ever had any practical utility. As I pointed out to the noble and learned Lord, Lord Falconer, during an earlier debate, Morgan was convicted. His belief was based upon being told by the husband of the complainant that if he went to make love to her, she would struggle and protest, but that that was all part of it. He was convicted. It was held that although it was open to him to hold a belief that was unreasonable, nevertheless his appeal would not succeed. Since that time—I repeat—the collective experience of those who have spoken today is that we do not know of such a defence succeeding.

Who has the best "reasonable man" argument? The noble and learned Lord, Lord Falconer, thinks that we are talking the same language. We are not. He is talking about the hypothetical reasonable person with whom the defendant is to be compared. Before one can compare the defendant with that hypothetical reasonable person, one has to decide who is that hypothetical reasonable person, hence our earlier debate as to whether he shares the characteristics, or some of them, of the defendant. That is a different reasonable test from the one that I postulate of members of a jury looking at that defendant, considering all the circumstances and asking themselves a simple question: he tells us he had an honest belief and, looking at him, at the kind of person he is and at his intelligence and not comparing him with the hypothetical person, is that reasonable? If they think that it was, they will find him not guilty. If they think that it was unreasonable, as sure as daylight, as they do at present, they will find him guilty. That is a very different route, coming to a simple conclusion, from the convoluted trip around the presumptions—whether rebuttable or conclusive—set out in the Bill.

I shall certainly return to the matter. I shall take into account the Minister's criticisms—perhaps a little touching-up of some of the wording would be in order—but I shall return to the matter on Report. I should be prepared to have further discussion with the Minister and his advisers on the topic if he thinks that that would be fruitful. However, for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

House adjourned at twenty-six minutes past ten o'clock.