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Lord Campbell of Alloway: My Lords, I support the noble Baroness in her Amendment No. 58 for all the reasons which she has given and, if I may be allowed to do so without presumption, congratulate her on the way in which she put forward her case. As regards the amendments to Clause 40 of the noble and learned Lord, Lord Ackner, I support them for the way in which they were presented. As the noble and learned Lord said, contemporaneity is no substitute for strength of evidence. That carries forward into the reasoning of Amendment No. 58 in the name of the noble Baroness. It is absolutely crucial that there should be sufficient information and the right information to enable the jury to make the right decision. I accept, if I may, the noble Baroness's criticism that she so cogently presented of Amendment No. 57. That was well conceived and I hope that the noble Lord, Lord Williams of Mostyn, can take it into account in the spirit in which it was tendered.

3.45 p.m.

Lord Thomas of Gresford: My Lords, my Amendments Nos. 59 to 61, which are grouped with the one we are discussing, are designed to throw out the whole of the suggested machinery in Clause 40 and subsequent clauses, as put forward by the Government. The issue is quite clear: should the judge in court have a discretion to admit cross-examination of a complainant on her sexual history in every conceivable and possible circumstance, and in every eventuality--as the noble Baroness Lady Mallalieu, put it; that is the purport of her amendment--that may arise in any particular case? Or, on the other hand, should there be a statutory strait-jacket, as I would call it--the noble Lord, Lord Williams, referred to it as a parliamentary structure--which guides and constrains the judge in the exercise of his decision whether or not to permit such cross-examination?

The noble and learned Lord, Lord Ackner, has already quoted Section 2 of the Sexual Offences (Amendment) Act 1976 and set out the test that a judge applies

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currently. He will permit such cross-examination of the sexual history of a complainant only if he is satisfied that it would be unfair to the defendant to refuse to allow the evidence to be adduced or the question to be asked. Miss Aileen McColgan in Volume 16 of the Oxford Journal of Legal Studies has helpfully analysed the most frequent categories in which previous sexual history is now admitted. I have only to refer to those categories for your Lordships to realise the nature of the circumstances which can arise in different cases. For example, sexual history may be admitted to rebut good sexual history called by the Crown if the prosecution suggests that the complainant is a woman of little or no previous sexual experience. In such circumstances the defendant may be permitted to adduce evidence to rebut that. Secondly, it may be admitted to show that the complainant has behaved in earlier sexual encounters in a way very similar to the facts of the current allegation, and that she has made previous false allegations of a similar nature. Thirdly, it may be admitted to show bias or malice borne out of previous sexual conduct on her behalf. Fourthly, it may be admitted to attribute physical evidence to another man, such as the presence of disease or presence of semen which may explain those particular pieces of evidence. Finally, it may be admitted to give support to the defendant's belief that she was consenting. I referred to that when I spoke on this amendment in Committee.

The report, Speaking Up for Justice, of June 1998, on which this Bill is based, stated that there is evidence that the practice of the courts in interpreting Section 2 is widely variable. The odd thing is that we have never heard precisely what that evidence is. It is contrary to the experience of practitioners such as the noble Baroness, Lady Mallalieu, myself, and judges who have addressed your Lordships in relation to this Bill, that there is a widely variable practice. It is difficult to obtain leave, if one is defending in a rape case, for the sexual history of the complainant to be subject to cross-examination.

It was suggested in Speaking Up for Justice that Scottish or New South Wales models should be followed. Indeed the noble Lord, Lord Williams of Mostyn, in speaking in reply to this amendment in Committee, also said that regard had been had to Canadian, New South Wales and Scottish models. The fact of the matter is that experience in those jurisdictions has not been satisfactory because the legislative frameworks that have been imposed have not been successful. In Scotland the rules to restrict sexual history were enacted in 1986 and were consolidated in Sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. That prevents evidence being called except to rebut prosecution evidence of good sexual character, or for sex on the same occasion as the charge, or anything it would be contrary to the interests of justice to exclude. That discretion was left in Scotland and the Scottish Office report, Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials stated that the statutory framework that had been enacted made little difference to the admission of such

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evidence. Indeed in Scotland 85 per cent. of applications for the admission of such evidence have been successful.

In New South Wales in 1981 a rape shield provision was added to the Crimes Act by Section 409B, and statutory exceptions of a similar nature were added, but there was no general discretion left to the judge at trial. It is true that the conviction rate went up and that only 29 per cent. of claimants were cross-examined under these provisions. However, as has been pointed out by Miss Vera Baird in a pamphlet that she has produced entitled, Rape in Court--I am extremely grateful for her research in this matter:

    "there is mounting criticism that the provision leaves no discretion at all to a trial judge to enable him to admit evidence outside the specified categories in a case in which it might be fair to do so ... no legislature has the prescience to foresee every eventuality".
That is the exact point made by the noble Baroness, Lady Mallalieu, a few moments ago. The leaflet continues:

    "The Standing Committee of the state Attorney General drafted a model penal code which was published with explanatory notes in November 1996. They now propose"--
this is New South Wales--

    "to reintroduce a judicial discretion which will allow the introduction of evidence eiusdem generis with the statutory categories if otherwise there would not be a fair trial".
The statutory strait-jacket has been attempted in New South Wales but has failed. A general discretion to meet all eventualities will now be introduced.

My noble friend Lord Lester of Herne Hill referred to Canada in Committee. Canada introduced a rape-shield provision in 1985 which permitted no residual discretion outside the fixed categories set out in that legislation. In the case of Seaboyer, that was held to violate Section 7 of the Canadian Charter of Rights and Freedoms and it was struck down as being inconsistent with that part of the Canadian Charter. In his judgment, Mr. Justice McLachlin quoted Professor Vivian Berger's article, Man's Trial, Woman's tribulation, and said:

    "The problem is to chart a course between inflexible legislative rules and wholly untrammelled judicial discretion: The former threatens the rights of defendants; the latter may ignore the needs of complainants".
So in Canada, this statutory strait-jacket having been struck down as inconsistent with the Canadian Charter, fresh legislation was introduced which not only followed the principles set out by Mr. Justice McLachlin in that case, where he offered a model of such legislation, but also introduced a new procedure whereby if there is such an application for cross-examination as to sexual history there follows a private hearing--which the complainant is not required to attend if she does not wish to do so--and the whole matter is then examined in private. The judge gives a reasoned decision as to why that history should be admitted, if he so decides, and then the matter is heard further in public.

It may be that something along those lines would be a way forward, but the way in which this clause is now drafted does not admit of a general judicial discretion. Rather like the evangelist who starts by persuading you that you are mired in sin, it is no good the Government

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attacking judges in order to justify introducing a strait-jacket of this kind. That only undermines public confidence in the judiciary and does nothing practical to assist in the resolution of the problem. And it is a difficult problem which faces the courts.

For those reasons, I fully support the amendment of the noble and learned Lord, Lord Ackner, the amendment of the noble Baroness, Lady Mallalieu, and my own amendments.

Viscount Bledisloe: My Lords, it seems to me that if Clause 40 is to survive at all, the case for either the amendment of the noble and learned Lord, Lord Ackner, or the noble Baroness, Lady Mallalieu, is over- whelming. I can give my reasons for saying that very simply and without, your Lordships will be pleased to hear, any citation from cases.

Subsection (2) of Clause 40 provides that evidence or cross-examination of this kind can be allowed only where the court is satisfied of two things--and it has to be satisfied of both of them. One is that to refuse to allow such evidence might have the result of rendering unsafe the conclusion of the jury or the court. So the first gateway is, "If I exclude this evidence, may it render a decision against the defendant unsafe?" On top of that, there is then a second requirement; namely, that one fulfils the requirements of subsection (3)--or subsection (3) as sought to be amended by the noble Lord, Lord Williams of Mostyn--or subsection (5).

There are two gateways. Where there are two gateways, by definition one may get through the first but not the second. So one could have a situation where the judge says to the defendant, "Yes, I am quite satisfied that unless you are allowed to adduce this evidence or to ask these questions there is a risk that if you are convicted that conclusion may be unsafe. But, I am sorry, you do not get through one of the other gateways and therefore you cannot ask the questions or give the evidence." There the judge is faced with saying to the defendant, "You need to ask these questions to have a safe and fair trial but I am not allowed to let you ask them." What does a judge do in such circumstances? Does he allow the case to go on, having told the defendant that the way it is being conducted will probably render his conviction unsafe? Or does he say, "I am not allowed to let these questions be asked, but unless these questions are asked there cannot be a fair trial, and therefore the trial must stop"?

An Act of Parliament which states that one may not ask questions even though the judge has decided that unless one asks these questions there cannot be a fair trial is the most amazing legislative concept I have ever heard.

4 p.m.

Lord Lester of Herne Hill: My Lords, I think I am the first person to say anything in favour of Clause 40 and against this group of amendments. I am conscious that I spoke in Committee and I shall try not to repeat what I said. It would be unfortunate if there were to be a polarisation of attitudes between, on the one hand, judges, with great experience of the criminal trial

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process and rape cases, and criminal law advocates, and the Government and their lay supporters, including many women and men, on the other. I do not believe that there needs to be that degree of polarisation.

In many ways the Government have not done themselves a great favour in the way in which they have described, or failed to describe, the background to what is now Clause 40. As I understand the position-- the Minister will, I hope, correct me if I am wrong--the Government have modelled Clause 40 on precisely the Canadian compromise referred to by my noble friend Lord Thomas of Gresford. As my noble friend indicated, in Canada a very rigid and extreme rape-shield law was introduced which totally fettered the court's power to strike a fair balance between the rights of the complainant and the rights of the accused and to ensure a fair trial. That law was struck down by the Supreme Court of Canada as being unduly rigid and depriving the accused of the right to a fair trial. Very sensibly, all the political parties in Canada then got together with judges from the Supreme Court and over several years fashioned a fair compromise respecting the dignity, privacy and equality of treatment rights of complainants, and the paramount right of the accused to a fair trial.

That is what Clause 40 does. Leaving aside the question about a private procedure to deal with this category of sexual offence in a different kind of way, Clause 40 seeks to limit the discretion, or judgment, or both, of the courts in admitting evidence of the complainant's previous sexual history as evidence of consent in most cases. It seems to me that in most cases evidence of previous sexual promiscuity is irrelevant, or should be irrelevant, and is inadmissible or should be inadmissible in relation to the issue of consent as distinct from honest belief in consent.

I know that that view is not taken by everyone. Having listened to the noble and learned Lord, Lord Ackner, and to my noble friend Lord Thomas of Gresford, I do not think that they agree with my remarks. I think they believe there is a wider category of cases in which evidence of the complainant's previous sexual history is relevant, ought to be able to be admitted, and is not greatly prejudicial to the dignity and other rights of the complainant. So there is a disagreement in principle. With respect, it does not do to cite existing case-law on that subject if the disagreement is within the attitudes displayed in that case-law on the one hand and what the Government seek to do in Clause 40 on the other, which is indeed to change the unsatisfactory status quo.

If I thought that the way in which the Government were going about the matter was the old Canadian or New South Wales way, I should join my noble and learned friend and others on all sides of the House in opposing the amendment. However, I believe that Clause 40 is clear and structured and strikes a fair balance. At any rate, it does so if your Lordships accept Government Amendments Nos. 56 and 57, which we shall debate shortly, since Amendment No. 56 would remove the somewhat arbitrary reference to the 24-hour limit. I greatly welcome the fact that the Government are now more flexible. The amendment seeks to reach a compromise following the "Romeo and Juliet" example

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given last time by the noble Baroness, Lady Mallalieu. Like the noble Baroness, I greatly welcome what the Government are doing in that regard.

As I said previously, I do not support a continuation of the present unsatisfactory status quo. As a matter of principle and practice, I believe that women have been subject for too long in some cases to a whole slew of irrelevant and inappropriate questions posed by the defence about their past sexual practices, past sexual partners and past medical history. I gave some examples in Committee where senior practitioners of great experience had made clear that, in their determination to do what they could for the accused, they would seek to damnify the character of the complainant, and often succeeded in doing so. Admittedly, those examples were based on a limited but important sample of practitioners who had been interviewed by a professor.

Such questions play on prejudices and myths about what is good and bad behaviour for women. To allow such questions in evidence disregards a woman's right to a fair trial, her right to privacy and dignity and her right to personal autonomy in making her own decisions about her sexual activities. That is a very high price to pay to defend the rights of the accused. I do not believe that it is a necessary price, as the recent Canadian reforms indicate. To ensure the fairness of a trial, we are right to prohibit evidence of an accused's past convictions from going before a jury. That is only fair since such evidence would be highly prejudicial. But surely the same logic should apply to the admission of sexual history evidence. In most rape cases, sexual history evidence has little probative value, and certainly not enough to overcome its highly prejudicial effect upon the alleged victim's rights. For those reasons, I support the Government's plan to introduce statutory guidelines placing the court's discretion within narrower limits. I do not go so far as to support the position taken by Women Against Rape. I do not support an absolute bar on the admissibility of sexual history evidence. I accept that in limited cases sexual history evidence can be relevant. Its admission should not, however, be the exception rather than the rule; hence the need for statutory guidelines.

During previous debates on this Bill we have heard much about consent. But consent to engage in sexual relations in the past does not give a blank cheque for consent to engage in sexual relations in the future. If that were so, the noble and learned Lord, Lord Lane, when Lord Chief Justice, would never have recognised that rape can occur within a marriage. That was a great landmark decision.

Consent, by its very nature, is to a person, not to a circumstance. As the Heilbron Committee pointed out as long ago as 1975, evidence of a woman's sexual experiences with partners of her own choice is not indicative of a general willingness to consent.

For those reasons, and for the reasons given by the Supreme Court of Canada only a couple of weeks ago--in a landmark decision in Regina v. Ewanchuk, the Supreme Court pointed out in what has become known as the "no means no" case that the honesty of a belief cannot be seen in a vacuum in cases of this kind--an

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honest but mistaken belief in consent must be genuine. A man cannot wilfully or recklessly disregard anything that was said or done which would lead an ordinary person to believe that a woman was giving her consent to engage in sexual relations. The obvious example is if the woman says no. How can a man have an honest but mistaken belief in consent if the woman says no? Nor can there be consent if a woman's actions show that she is being forced to give her consent, or that she fears for her safety or is being pressured to do something that she does not want to do.

Past sexual history may be a factor, but it is one of many, and its admission should be weighed against any indication that such evidence is being sought to impugn the woman's credibility or to jeopardise the fairness of the trial to all concerned. These are, rightly, hurdles which Clause 40 seeks to establish as part of our law. For those reasons, I oppose the amendments and support Clause 40 as it stands.

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