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Lord Williams of Mostyn: I am grateful for the tone and content of everything that has been said. I prosecuted and defended in rape cases and I know that the memory never leaves one in a way that is different from other serious cases. The noble Lord, Lord Cope, is a generous-hearted man, but he says that women may be put off from complaining of rape. I do not believe that that grasps the true dimension. I do not believe that it begins to describe the deep, bitter distress and humiliation that women feel at the prospect of--I underline that--being cross-examined by the alleged perpetrator.

The noble Baroness said that I promised to look at these matters with an open mind and I continue to do so, but the more I have listened to the arguments tonight the more I have been fortified in my view, which I did not reach lightly, that Clause 33 is correctly included in the Bill.

The noble Lord, Lord Cope, also said that there might be a danger of a man being unable to defend himself properly. That cannot arise. The only prohibition is that he shall not be allowed to cross-examine the complainant in person. These are very important matters. There is no question that a defendant cannot

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defend himself properly. He can have a court appointed lawyer for the appropriate part of the cross-examination--that is the prohibited part of Clause 33--he can have the lawyer, at legal aid, of his reasonable choice to defend himself throughout. That is no inhibition against defending himself properly.

We have already come to the policy conclusion, which none of your Lordships from any quarter of this Chamber has challenged tonight, that in cases involving children the benefit, as it is, of allowing a defendant the freedom to conduct his defence in the way he chooses does not outweigh the distress of being cross-examined by an unrepresented defendant. No one has raised a question about that tonight and I fortify myself, I believe open-mindedly, with the arguments put forward by the noble Lord, Lord Lester, and the noble Earl, Lord Russell.

What perhaps has not been grasped tonight is the very powerful deterrent--my noble friend Lady Kennedy made this point--that the possibility of being cross-examined by a defendant can have on witnesses considering those agonising circumstances described by the noble Earl, Lord Russell, as to whether they can face giving evidence in court. I recognise--I have said it often enough in this House--that not all defendants are guilty, but they have then to contemplate the moral burden of dreadful wrong going unpunished because a system is skewed against them.

The noble and learned Lord the Lord Chief Justice said that it was not a question of judicial amour propre. I entirely accept that. I have never suggested it, nor to my knowledge has any member of this Government. He said that there had been no other cases. I respectfully dissent from that view. There is abundant material to show that there have been many other cases; not cases which have gone to the Court of Appeal Criminal Division, but cases of women who simply cannot bear the prospect of being cross-examined by their alleged criminal violator.

The noble and learned Lord the Lord Chief Justice said that we must avoid the risk of miscarriages at all costs. I do not believe that he and I can agree on that. I do not believe that "at all costs" falls into the equation here. The trial process should not be about allowing witnesses, particularly in this specific class of case, to be abused by defendants who want to take the opportunity to cross-examine, badger, humiliate or intimidate the alleged victim. And it is a crime of violence. It is sexual, physical violence on the occasion of the attack; brutal humiliation and verbal violence in the court setting. They are not, qualitatively, enormously different in some ways. The slightest chance that that can happen in the future, no matter how controlled the questioning, is putting women off coming to court at all. They ask police officers, they ask the CPS, "Is it still a prospect?" and the honest police officer, trained in this class of work, and the honourable servant of the Crown Prosecution Service have to say that it is a possibility--because it is.

I do not consider that husbands should be given the chance to confront their wives in this way if they are accused of rape. I thought myself that a married woman

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was no longer her husband's chattel. We have already decided--I repeat because no question has been raised about this--that a father accused of incestuous sexual abuse by his daughter, is denied that opportunity. We did that on policy grounds, which I for one am perfectly happy to defend, defend and defend again.

Of course the witness's evidence must be tested and of course the defendant's unique knowledge of a witness can help to uncover a false complaint, but that can be done fairly; it can be done properly; it can be done in the defendant's interests by a legal representative, properly instructed, who will stick to the issues at trial and is going to be professionally bound by obligations which make judicial control of the trial efficient, expeditious and fair. The prohibition does not curtail the freedom of a defendant to choose what defence should be put forward, or what questions within the proper limits should be asked of a witness. It does stop him taking the opportunity of further humiliation.

I was going to say just a word or two justifying my thumbprint on the front of the Bill which the noble Lord, Lord Lester, kindly pointed to, but it seems there is no question about that. The certificate, at least in the context of Clause 33, was properly given and I will not deal with the cases in the European dimension which the noble Lord has referred to.

May I take an illustration? At the moment, under the general common law rules, if a defendant defends himself and the judge gives him directions that he must not ask this or that or must desist from this line or not continue with that, the only power the judge has, should he refuse, is to put him down in the cell. The judge has no present power to appoint a court authorised representative--none at all--and therefore in the scheme of this Bill, we are giving additional protection in that context to a defendant who is otherwise not represented. Of course some defendants will be wholly unco-operative: they are at the moment in a vast number of cases. They know the game. They cannot make a statement from the dock as Mr. Stonehouse could but they can still make a concluding speech which is supposed to have some relationship to the evidence which was given. Of course the complainants can play the system as of their choice.

The judge trying the case is perfectly capable and competent, in my experience of the modern judiciary--I say that without presumption--of saying calmly to the jury, "The reason why this defendant cannot ask questions of this woman is because Parliament says he is not allowed to. That is the law of our country. He is not allowed to cross-examine children: that is the law of our country. Whatever you think of it, members of the jury, you and I are bound by it and you are bound to abide faithfully and loyally by your oath." There is no difficulty there if the judge tries the case properly, as they do.

I return to what the noble and learned Lord the Lord Chief Justice said: there has been no further problem, for the reasons outlined by the noble Baronesses, Lady Kirkwood and Lady Kennedy, as well as by the noble Lord, Lord Lester, and the noble Earl, Lord Russell. I profoundly disagree that there is a further problem,

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and that it continues with us. The guidance of the Lord Chief Justice in the two leading cases was of course extremely important in setting down what judges have to do and what judges can do to control the proceedings. There was the emphasis that judges should step in to stop irrelevant, repetitive or humiliating questions, and that in certain circumstances the defendant can be stopped from questioning altogether.

I simply say this. That was the law long before those two cases were tried; whether by way of obligation on a member of the Bar or an unrepresented defendant, that was the law. These cases did have enormous publicity. Yet women who are in the position of the students of the noble Earl, Lord Russell, are not going to be satisfied on the next occasion when he gives them the moral tutor's guidance, "Ah, all will be well with you because we have got two guideline decisions from the Court of Appeal, Criminal Division". I am sorry to say that life is not like that.

We have thought carefully about this. We tried to balance the two rights and the two possible great wrongs of which the noble Earl spoke. It has not been an easy decision for any of us. Many of those concerned in making the decision have a lot of experience in one way or another of practice in various courts. It was not something we rushed into; we thought about it very carefully. The more I have listened to the arguments this evening--arguments which spanned the whole spectrum of possible debate--I regret to say to some Members of the Committee, the more abundantly I am sure we have come to the right conclusion, which, in the nature of things, is a compromise; but it is a right, just and proper one.

11.30 p.m.

Lord Thomas of Gresford: I must express my profound disagreement with the noble Lord, Lord Williams of Mostyn, when he queried the phrase used by the noble and learned Lord the Lord Chief Justice that it was necessary to avoid miscarriage of justice at all costs. I consider that a single miscarriage of justice--as the history of the past few years has shown--carries a disproportionate weight and affects the confidence of the public in the criminal justice system of this country in a deep and significant way.

My noble friend Lord Lester, arguing from principle as he does, because there is in fact no decided case of the Court of Human Rights which supports his proposition, referred to the proportionate principle and sought to balance Article 6.3 against Articles 3 and 8; that is to say, the human rights of the defendant to defend himself against the rights of the complainant who brings forward the complaint. Similarly, my noble friend Lord Russell referred to the balance that has to be struck between competing principles.

However, neither of my noble friends put into the balance the right of a person not to be wrongly convicted. It is more than a right to defend himself that is in that side of the balance when one is considering this problem; there is also his right not to be wrongly convicted. In the other side of the balance, if the position is as the history of the past two years has shown--that

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no complainant has been put through this ordeal--and if judges have been given full and proper instructions as to how to deal with this situation should it arise in the future, there is nothing of significance to set in the balance against the right of the defendant not to be wrongly convicted and his right to defend himself.

My noble friend Lord Russell drew attention to the fact that it is painful and difficult for a complainant to go through with her complaint; and so it is; I have no doubt about that--if the complaint is true. Indeed, if it is true, I would add that it requires determination and consistency for a complaint to go forward. But, if one is carrying out a balancing exercise, against that painful and difficult task one has to set the dire consequences to an individual if he is wrongly convicted. A rape case in which I was involved last year resulted in a 14-year sentence of imprisonment for the defendant. That is a considerable period of time for the loss of liberty, followed as it inevitably will be by further restrictions upon that defendant's freedom.

We cannot proceed to make the law as if every complaint were true and as if the complainant had been violated. That is not the case. False complaints of rape are made for a variety of reasons: sometimes due to quarrels over money, the children, another woman or jealousy. All sorts of reasons lead to false complaints being made. It should be borne in mind that the problems of bringing forward complaints and the difficulties to which reference has been made may deter false complaints as well as those which might be properly founded. There is a deterrence not simply for people who are making true complaints and who have the benefit of the force of truth behind them when they make such complaints; a deterrent factor also operates when a person makes a false complaint.

The Minister said that there is no question but that a defendant can defend himself properly. I disagree. I can see that the possibilities of a miscarriage of justice are inherent in Clause 33. However, for the moment, I beg leave to withdraw my amendment, although I may return to it at a later stage.

Amendment, by leave, withdrawn.

[Amendment No. 91 not moved.]


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