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Baroness Ludford: I may as well venture where my noble friend Lady Thomas does not dare to tread. As a qualified barrister but one who has never practised I do not profess to possess the knowledge of some of my noble friends.

I listened with interest to the debate between my noble friends Lord Thomas of Gresford and Lord Lester of Herne Hill. I start from the point of view that the status quo is not satisfactory. I was concerned by something said by my noble friend Lord Thomas. He

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said that the existing test is that the judge has to decide whether it would be unfair to the defendant not to allow the evidence of previous sexual history. He quoted from the case of Lawrence in 1977 which had been interpreted as meaning that if the evidence was admitted it would lead the jury to take a different view.

That seems to me to meet the analogy drawn by my noble friend Lord Lester of Herne Hill, where the point of excluding the previous convictions of a defendant is precisely to avoid a situation where the jury is likely to be prejudiced and draw the semi-automatic conclusion that, because the defendant committed every other burglary in the street, he must have committed this one.

Lord Thomas of Gresford: I am sure my noble friend will recall that witnesses can be cross-examined as to their convictions in any case, and a complainant is a witness.

Baroness Ludford: Notwithstanding that, my point stands. I believe that some tightening up of the existing status quo is necessary. Perhaps I may make a further small point. The position of Women Against Rape was alluded to earlier by the noble Baroness, Lady Mallalieu. I understand that that organisation takes the view that evidence of previous sexual history with anyone other than the defendant should not be admitted. My noble friend Lord Lester also referred to that and said that it goes too far. I can appreciate that. However, I shall listen with interest to the Minister's reply.

It seems to me that greater care will need to be taken with evidence of previous sexual history with partners other than the defendant, particularly if the issue is one of consent. It is surely in that area that the problem lies; that is, the risk that the evidence that the complainant is promiscuous may somehow lead to the conclusion that she must have consented also on that occasion. Her previous history with the accused is surely more relevant--or that may be argued--than her previous history with people other than the accused. I shall listen with interest to see how the debate on this point develops.

Lord Warner: I had not intended to speak, but having listened to the debate on Clause 40 one cannot help but think that this sounds more like a debate in a legal club as to whether or not it should have its discretion fettered and not whether it is more reasonable to balance better the rights of defendants and complainants.

Members of this Committee from time to time will have encountered the Government's interest in evidence-based practice. I have heard no one this afternoon respond to the points raised by the noble Lord, Lord Lester, in relation to research evidence on the extent to which people are putting into practice the Court of Appeal's guidance. On the strongly argued research evidence I feel that we should review the present situation and not adhere to the status quo.

Most lay people observing this territory have a strong perception that it is often open season in rape cases for lawyers to blacken the reputation of women in the hope that that will advance the cause of their client's defence.

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I share the concern of the noble Lord, Lord Lester, that we perpetuate that myth of the unchaste woman as evidence that consent was given in those cases.

I am sure that Members of the Committee who practise law consider in the cases with which they deal that the system works extremely well. But that is not the perception of the outside world. Clause 40 does not do anything to seriously reduce the rights of defendants in these cases; it simply narrows the discretion of the court and rebalances matters between the defendant and the complainant.

During the course of the debate I heard a number of what seemed to me to be slightly offside remarks in relation to civil liberties and human rights. But it is worth bearing in mind that we have now passed legislation in this country whereby we require Ministers to sign on the face of the Bill a certificate to indicate that the legislation conforms with the European Convention on Human Rights. I suggest that we stick to Clause 40 as it stands rather than trying to revert to the status quo.

Lord Milverton: I shall wait to hear what the Minister says on this difficult matter. I think that perhaps there is more readiness than not to accept what some women maintain; namely, that they have been raped. Often one reads of cases in the press in which it appears that women are not always taken seriously. It is suggested sometimes that perhaps they have encouraged the offence. However, I believe that there are occasions when a woman "has been done", to put it crudely, against her will. I like to believe that a great many women are decent and do not just say, "Here I am." At the same time, I think that perhaps we men are partly responsible. That goes back not just to Christian beliefs, but to other beliefs which uphold the dignity of a human body and of life. I shall be interested therefore to hear what the Minister says.

Perhaps some women may behave in the opposite way, equivalent to a man. However, I do not believe that the status quo is appropriate. Somehow, justice is needed for the many women who are clearly "done" against their will, but justice also needs to be done for men who may have been forced against their will. However, on the whole, I think that we men have a lot to answer for in the way in which some women are treated as regards rape.

6.15 p.m.

Lord Bingham of Cornhill: I too had not intended to speak but various Members of the Committee have tempted me to do so. Perhaps I make take a specific example which may be stigmatised as far fetched, but I think it makes the point.

Let us suppose that a defendant is charged with raping a complainant at 2 a.m. on New Year's Day. Let us suppose further that he is in a position to instruct counsel to ask these questions of the complainant: "Did you voluntarily have sexual relations with a different man, A, on Boxing Day? Did you voluntarily have sexual relations with a different man, B, on 27th December? Did you voluntarily have sexual

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relations with a third man, C, on 28th December? Did you voluntarily have sexual relations with another man, D, on 29th December?"

As I understand the Bill, if the defendant's defence is one of consent--not reasonable belief, but consent--none of those questions could be asked, even if it was known that the answer to all of them would be "Yes". The reason for not permitting those questions is not that they are irrelevant. I suggest that no rational person would think that those questions were irrelevant. I also suggest that a reasonable juror could think that they were probative. By "probative" I do not mean "conclusive". They do not mean that the complaint is false; they just mean that it is something that a reasonable person would want to take into account in considering the truth of the complaint made and the defence to it. If such questions were not capable of being regarded as relevant and probative, we would not see the 24-hour window before and after the alleged offence for which the Bill provides.

Therefore, these are relevant questions, potentially; they are probative questions, potentially, but, if I understand the Bill correctly, the judge is not to be given any discretion to allow them to be asked unless the issue is not consent, but reasonable belief.

I suggest that that is not good sense. That is not a recipe for the good administration of justice. Although the Minister took issue when I said this the other evening, I suggest that we must at all costs avoid miscarriages of justice in this area as in every other. I am sure that Members of the Committee do not need reminding that the penalty for conviction of rape is a very heavy one. The courts have been responsive to the outrage that all decent segments of society feel at the commission of what is rightly described as an act of violence as well as of gross sexual violation. So let us not suppose that a count of rape is one that leads to no severe penalty; it leads to a very severe penalty indeed. That means that the need to ensure that somebody is truly guilty before he is convicted is ever stronger.

Some noble Lords have asked whether the law is now observed. The truth of the matter is that none of us really knows. Some of us have impressions, perhaps gained from the newspapers, one way; others have views, derived from research, the other way. I can contribute one piece of information for the Committee's consideration. When judges who try these cases attend, as they regularly do, the circuit level seminars on the conduct of these cases run by the Judicial Studies Board, the question that is always asked is whether the discretion is too lightly exercised in favour of the defence. The suggestion that it is greeted by the judges with a sense of outrage and disbelief. That confirms, I venture to suggest, what the noble Baroness, Lady Mallalieu, with her enormous day-to-day experience, told the Committee.

Perhaps I may draw attention to the extremely guarded terms in which our amendment, Amendment No. 125, is framed. It states that such questions and evidence are to be allowed,


    "if and to the extent that the court considers such evidence or question to be necessary".

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It does not say "desirable" but "necessary"--the strongest word which could be used--and for what purpose,


    "in the interests of justice"
which must be paramount,


    "to ensure a fair trial of the accused".

I hope that the Minister will think carefully about the matter. I can see no good reason why any court should be deprived of a discretion as limited and closely circumscribed as that.


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