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Lord Henley: It applied to Peers of first creation. I appreciate that there were not life Peers at the time but Peers of first creation--that is, those created rather than those who received the honour by means of birth--could also require silk.

Lord Acton: Will my noble friend clarify whether Law Lords could be hanged by a silken cord?

Lord Williams of Mostyn: Certainly not, by necessary definition. It is well known, as all Members of the Committee are aware, that no noble and learned Law Lord could ever fall into error on any possible occasion. Therefore the opportunity of execution with a silken or hemp rope would never arise.

There were further questions that I was about to develop of great economic, social and political importance. Life Peers could not be hanged, either with a silken rope or a hemp rope, because they would not thereafter be able to attend and claim their daily subsistence allowance, I assume!

This is a serious matter, obviously. It has been dealt with on an agreeable basis tonight. Speaking personally, we are at the time for review, but not, I think, on this present occasion. I shall sit down now in the hope, expectation and belief that my noble and learned friend Lord Archer will accept that his views and mine largely coincide, as they do with those of the noble Lord, Lord Henley. We need to review these matters in greater detail, and perhaps with more present. Preferably, I suggest, they should be discussed in another place.

When the noble Lord, Lord Henley, and I acceded to our present respective responsibilities, we had a private bet which was that whoever of the two of us first used the phrase I shall specify in a moment or two would win the £10 prize. The phrase was:


I think that I have won the £10.

Lord Archer of Sandwell: I am most grateful to all who have participated in the debate, especially of course those who agreed with me. I am grateful to my noble friend Lord Williams for disagreeing with me so courteously and entertainingly. I accept that there are certain issues which have been raised tonight--no doubt I am partially responsible for raising them--which are not essentially part of this debate.

The noble and learned Lord, Lord Slynn, advised me--it would not be the first time that he has given me good advice--that we should perhaps take this a step at a time, and not necessarily raise the question of the 6th Protocol this evening. I accept that. The 6th Protocol is not part of this amendment, and it would not be part of this debate if we resumed it at a later stage.

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I accept, too, that there might be room for further consideration of the suggestion by the noble Lord, Lord Goodhart, of whether treason in time of war might at least be the subject of different considerations, and therefore not necessarily part of an appropriate amendment. For those reasons, among others, I would not be minded to press the matter to a Division at this time tonight.

I am bound to warn my noble friend Lord Williams that the argument that the matter should be carefully reviewed and perhaps debated somewhere else strikes me as rather less forceful. There has been ample opportunity to review it for many years. It was raised in 1990 to my knowledge. I always have a feeling that once the heat is off the Home Office loses something of its sense of urgency.

For that reason, I do not promise not to resurrect the issue in the future course of the Bill. However, I fully take the point of the noble Lord, Lord Henley, that it would not necessarily carry greater weight if the amendment were passed at nine o'clock on a Thursday evening in a House which is perhaps not as full as we have sometimes seen it. For those reasons, and with the formula which judges are sometimes encouraged to use when they put back a case for reports--that it does not foreclose anything and that all the options are open-- I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

Baroness Mallalieu moved Amendment No. 175A:


After Clause 27, insert the following new clause--

Judicial discretion to exclude young sex offenders from the notification requirements

(" . In the case of a person who is under the age of 18 the court may in an appropriate case direct that the notification requirements for sex offenders under the provisions of the Sex Offenders Act 1997 shall not apply.").

The noble Baroness said: I propose to move the amendment swiftly in the hope that a good point is not improved by repetition or protraction. The Sex Offenders Act 1997 came into force last September. Its object was to allow the police to keep track of potentially dangerous or persistent sex offenders. It required people who were convicted of specific sex offences to notify the police of their name and home address and thereafter for a period of time to notify any changes.

The periods of time varied according to the severity of the sentence, but for an adult it was a minimum of five years up to an indefinite period. Under the provisions of the Act, which modified it in some respects for young offenders, a minimum period of two and a half years up to an indefinite period applied to those under the age of 18.

The Act is difficult to follow. Perhaps further scrutiny in your Lordships' House as the Bill passed through would have paid dividends because the end result is that it undoubtedly causes concern and difficulty.

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Apparently, the Act does not allow a judge discretion as to whether to require an offender of any age from 10 upwards to be required to register.

Some of the offences specified in the Act, particularly where they involve young defendants, may well not merit notification in the view of a sentencing judge or magistrate. I shall give two examples: first, a single indecent touching by a 10 year-old, a case which featured prominently in tonight's debate; secondly, under age sex between two 15 year-olds in some circumstances may not necessarily be felt to require registration.

The amendment therefore is a modest proposal to permit an element of discretion to be exercised by a judge in cases of those who are under 18. If the Act is intended to enable the police to keep track of those dangerous or persistent offenders--although there may be some within that age bracket who merit the requirement--there will be many cases where it is plainly absurd.

I hope that in reply the Minister will be able to offer some comfort to counsel and judges who have searched this difficult piece of legislation for some way out and at the present time cannot see one. I beg to move.

Lord Williams of Mostyn: If it is of assistance to the Committee, I shall indicate a helpful response. My noble friend's amendment makes a valid point. We know of cases which have caused concern because a young person has had to register under the Sex Offenders Act 1997 when it was not appropriate in terms of subsequent risk to the community. The schedule is very complicated. As my noble friend said, it is too complicated. There are different age limits for different offenders scattered liberally about. It is difficult to follow. We are not convinced that it is absolutely right. We need to give it thorough examination.

Therefore, I do not wish to accept the amendment as it stands without having an opportunity to look at it in more detail. I repeat that I am grateful to my noble friend for bringing forward the amendment. I seek my noble friend's agreement and that of the Committee to allow us to look at the issue further in depth before reaching a conclusion as to whether the amendment should be accepted and, more particularly, exactly what it should contain. I hope that that is a helpful response both to my noble friend and to the noble Lord, Lord Hylton, because I did not mean to be discourteous but rather to be helpful.

Baroness Mallalieu: I am most grateful to the Minister. Of course I shall look with great interest at what the Home Office produces. Emboldened by the Minister's helpful response, I ask him to look also at the question of discretion in relation to older offenders because they too are excluded under the legislation as presently drafted. I thank him and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Baroness Anelay of St. Johns moved Amendment No. 176:


Before Clause 28, insert the following new clause--

("Trial procedure for rape and indecent assault
Trial procedure for rape and indecent assault

.--(1) A defendant charged with a rape offence or an offence of indecent assault shall not personally ask questions of a complainant in the course of a trial related to the charges.
(2) In this section--
"complainant" means a woman or man upon whom, in a charge for a rape offence or an offence of indecent assault, it is alleged that rape or indecent assault was committed, attempted or proposed, and
"a rape offence" means any of the following, namely rape, attempted rape, aiding, abetting, counselling and procuring rape or attempted rape, incitement to rape and conspiracy to rape.").

The noble Baroness said: I tabled this amendment to give the Committee the opportunity to consider a sensitive and problematic issue which is of vital importance to those victims who suffer the trauma of rape and indecent assault. I invite the Government to explain how they are currently working to resolve the problem.

Members of the Committee will have read reports in the newspapers last autumn of a case which highlighted the problem which I address. The victim of a rape was cross-examined personally in court by the defendant for days upon end. That defendant had decided not to be legally represented and then indulged in the self-gratification of personally questioning the victim for far longer than was necessary to obtain the information relevant to the case. Finally, he was indeed convicted.

I do not say that that case is typical of the conduct of rape trials. Most defendants in rape trials are legally represented. But I believe that it is important that such behaviour--putting the victim through public humiliation simply to enjoy that humiliation and to relive the personal satisfaction gained from the assault and not to elicit succinctly evidence for the defence--should not be countenanced within our judicial system.

This amendment would direct that a defendant charged with a rape offence or an offence of indecent assault shall not personally ask questions of the alleged victim during the course of the trial. It applies equally whether the victim is a woman or a man. I have received several messages of support; for example, from the national organisation of victim support. However, I should say in fairness that some organisations, like the latter that I have named, would say that I have not gone far enough and, for example, would like the amendment also to cover the victims of stalking.

It may be asked why it is not possible to achieve the same result within the system as it stands today. Should we not leave it to the judges to take greater control over court proceedings than they do at present and prevent defendants exploiting cross-examination? I should welcome such a development but I see the difficulties inherent in it.

I am aware that there is already a requirement laid upon the judge to do his utmost to restrain unnecessary cross-examination. But the judge's role in doing so is

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hedged about with problems. If a judge stops a defendant in the middle of a line of questioning by querying the relevance of the questions, the defendant, rather like Question Time in your Lordships' House, will say, "Just wait a minute. I am just coming to the important point and then you will see the relevance of my questions". But then the defendant will continue with his irrelevant line of questioning solely to enjoy the discomfiture of the witness.

What happens if the judge stops the defendant? He must be very sure indeed of his ground and, perhaps even more important, sure that, on appeal, the Court of Appeal will back the judge in that decision. However, let us assume that the judge has silenced the defendant and then takes over the task of asking questions of the alleged victim to test the reliability and the accuracy of the witness's evidence. The problems still continue, for the judge must take care not to descend into the arena. Guidance on the matter has been given in the case of De Oliveira (CLR 1997).

Moreover, not all rape cases are tried by High Court judges of the fortitude, I might rather impertinently say, of the noble and learned Lord, Lord Ackner, whose strengths and forthrightness of views on tribunals have carried his reputation to this House. Rape cases are often heard by circuit judges. I would argue that it is unsatisfactory at present for us to rely upon individual judges to curtail proceedings when they seem to have insufficiently stringent rules governing the conduct of such cases.

At first sight, I realise that my amendment may appear overly restrictive of the rights of the defendant. We on this side of the Committee are quick to analyse whether measures are in contravention of the European Convention on Human Rights. I can assure Members of the Committee that I believe my amendment does not contravene Article 6 of the convention which refers to the general right to a fair trial. That article does not provide an absolute right to defend oneself. Subsection (3) says:


    "Everyone charged with a criminal offence has the following minimum rights: to defend himself in person or through legal assistance of his choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; to examine or have examined witnesses against him, and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".

Thus the convention does permit of legal representation as an alternative to personal representation.

Finally, is my amendment too radical? Does it break new ground and threaten the basis of our judicial system? No, it does not; it simply builds on what is already in place. Parliament has already recognised that there are occasions where defendants should not be allowed personally to cross-examine the witnesses. I chose to refer to the case of De Oliveira a moment ago. I did so purposely because that is an example of just such a case.

Section 34A of the Criminal Justice Act 1988 provides that a defendant shall not cross examine in person any child witness who is the alleged victim of certain offences which include rape and indecent assault.

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I realise that I have very much given a precis there of Section 34A(1) which is to be found at paragraph 8-115 of Archbold and also Section 32.2 of paragraph 8-56.

Parliament has already recognised that child victims of rape and indecent assault should be protected from personal cross examination by the alleged offender. I ask that the same protection should now be given to adult victims. I beg to move.


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