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Lord Thomas of Gresford: My noble friend Lord Lester of Herne Hill freely admits that he has no experience of rape cases. With respect to him, he operates on the higher plane of human rights. When he referred to the rape-shield provisions which have developed in other jurisdictions under their Bills or Charters of Rights, he overlooked the fact that the expression he used--the balancing of justice to the accused and fairness to and protection of the complainant--was used by the noble and learned Lord, Lord Lane, a former Lord Chief Justice, in the case of Fenlon in 1980 when he said in terms that in deciding whether to allow cross-examination under Section 2(2) of the Act,
My noble friend referred also to the guidance given by the Court of Appeal. That guidance has been on the interpretation of Section 2(2) of the Sexual Offences (Amendment) Act 1976 which, as the noble and learned Lord, Lord Ackner, pointed out, reads as follows:
Lord Lester of Herne Hill: Does my noble friend agree or disagree with the conclusion reached by Professor Temkin in her study of all those cases in the Criminal Law Review, to which I have referred, where she concludes that the willingness of the Court of Appeal to see a wide range of evidence as of relevance to consent means that trial judges who refuse to allow in sexual history evidence do so at some considerable risk of a quashed conviction on appeal?
Lord Thomas of Gresford: If the Court of Appeal quashes the conviction, it seems to me that justice has been done. My experience is--as is that of the noble Baroness, Lady Mallalieu--that it is extremely difficult for such questions to be put. Before they can be put, the Court of Appeal also gives this guidance that:
The test of whether the conviction or conclusion is unsafe is that which applies to the Court of Appeal. In my view, it is wrong to introduce the concept of whether something is rendered unsafe into the discretion of the trial judge. The phrase that has been used in the existing legislation and expanded upon by the Court of Appeal that the judge must consider whether there is unfairness to the accused is a far better test.
My second comment is in relation to subsection (3)(a) and (b). It would seem that it is possible in the discretion of the judge for questions to be asked about the sexual history of the complainant if the issue is not an issue of consent; that is, if the issue is a belief in consent. It seems to me that there is a contradiction here because in almost every case where the defence is one of consent, there will be an additional defence that, even if the complainant did not consent, the defendant reasonably believed that she did consent. The two defences almost invariably run together. Indeed, I cannot imagine a situation where they could not run together.
In that eventuality, it would seem that under subsection (3)(a), the previous sexual history of the complainant, provided that it is relevant, can, with the leave of the judge, be explored in that particular case. There are other criticisms which I have to make of this particular clause, but I have already gone on for far too long and I shall leave it to others.
Lord Desai: I am not a lawyer. I am the first non-lawyer to speak on this question. Having heard many lawyers, I am somewhat confused as to what is the issue, so I shall start by stating what I believe should be the case.
As far as I understand it, the status quo, as it is, is not satisfactory but the clause makes the case worse rather than better. That is my understanding. I believe that in a case of rape, the sexual history of the woman should be totally irrelevant and should not be asked about. That is the first principle that I want to state.
Even the 24-hour rule should be admissible only if the other party is the defendant but not otherwise. So in relation to the case cited by my noble friend, even if the lady in question practised the balcony scene every night or every four hours, it should not concern the court.
I read with great admiration a lot of literature which feminists write. I know that there is much dissatisfaction about the rape issue among women. There is dissatisfaction with the legislature that rape is somehow considered to be like other offences, whereas many believe--perhaps in an extreme way, but genuinely--that it is more akin to murder than not. And a murdered person's previous history is not relevant as to whether or not he was murdered.
I know that I am being extreme, but that is my role in life. I feel that at present I am inclined to side with the noble and learned Lord, Lord Ackner. He at least wants to preserve the status quo. In as much as Clause 40 does not go in the opposite direction of removing such discretion as the judge has, I have to live with that. But Clause 40 goes the wrong way. It asks the judge to admit evidence which should not be admitted and therefore I shall be inclined to support the noble and learned Lord, Lord Ackner.
Baroness Thomas of Walliswood: The noble Lord, Lord Desai, has beaten me to the drum as the first non-lawyer to speak. But I am only the second woman to speak and want to say straight away that I am not a member of any extreme feminist group, though I am a member of several respectable ones. And I do not take everything that is said by some of them as the word that I have to follow.
I listened to the noble and learned Lord, Lord Ackner, with all the deference and interest with which I always listen to him. To begin with I felt that he made a lot of sense. But as an ordinary lay person, as he went on--particularly when he was supported by the noble Lord, Lord Campbell of Alloway--I gained the clear impression that the issue of consent could be adduced to some extent by introducing evidence of a complainant's past history. If that is so, one could never support a prostitute who claimed to have been raped, yet I am sure that prostitutes can be raped. We could never convict anybody who raped a promiscuous woman because that evidence would be against her character, yet I am sure that there are women who have a number of sexual partners and who can be raped. Finally, it would be extremely difficult to convict a husband of raping his wife, yet husbands can and do rape their wives.
For those reasons, unless I hear something dramatic and convincing from the noble and learned Lord the Lord Chief Justice, if he intends to speak, I support the line taken by my noble friend Lord Lester of Herne Hill.
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