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Lord Ackner: My Lords, before the noble Lord sits down, I wonder whether he will tell me whether he disagrees with two propositions, both of which were mentioned in Committee. The first is from Viola. I quote:


Is that accepted by the noble Lord as a perfectly valid proposition? If not, perhaps he will tell the House why.

Lord Lester of Herne Hill: My Lords, of course I accept that proposition, as do the Government in their approach in Clause 40. That is why they would limit evidence of previous sexual history, initially within the 24-hour rule, and now replaced by something less rigid but still placing the evidence within very direct contact with the issue in the case.

Lord Hacking: My Lords, although I have had a keen interest in criminal justice since I first joined your Lordships' House over 25 years ago, I have hitherto not had the opportunity, alas, to take part in the debates on the Bill. That is because I have not had the time to give it the attention that it rightly deserves. I therefore did not intend to participate in the debate on Clause 40 until it had commenced and I had heard the argument.

I support the Government in the introduction of Clause 40 into the Bill. There have been a number of cases, particularly when the accused has represented himself, in which a complainant has been harassed, humiliated and embarrassed to a quite unacceptable degree in rape trials. It is possible that on those occasions the trial judge did not exercise the type of judicial decision making that he should and that he did not sufficiently restrain the questions. Nevertheless, those events have taken place. Therefore, I believe that the Government are entirely right and I support my noble friend on the introduction of Clause 40 into the Bill.

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However, thereafter it is important to ascertain whether there is sufficient judicial discretion. I entirely agree with the noble Lord, Lord Thomas of Gresford. I believe he said that the Bill as drafted, even with Amendments Nos. 56 and 57 tabled my noble friend Lord Williams, still did not admit a general judicial discretion. The point was also made by the noble Viscount, Lord Bledisloe.

The Minister will remember the debates on the Crime (Sentences) Bill. We joined together as strongly as we could in opposing the measures of mandatory sentencing in that Bill, precisely because it did not give enough judicial discretion. My noble friend will remember that we were victorious. Voting against the government of the day, we managed to have inserted into the Bill sufficient judicial discretion over mandatory sentencing.

Therefore, we must consider the amendments introduced by my noble friend, with the encouragement of my noble friend Lady Mallalieu, in Amendments Nos. 56 and 57. Amendment No. 57 puts the introduction of the evidence into a tight compass. It must be


    "so similar to any sexual behaviour of the complainant"
--that is the first restraint--


    "took place at or about the same time"
--that is the second restraint; and it must be of such similarity that it,


    "cannot reasonably be explained as a coincidence".

My noble friend practised much in the English courts when he was a member of the Bar, both as a junior and as a Queen's Counsel. He is wholly familiar with the criminal trial and with cases involving sexual allegations. I ask him therefore to consider how he would make a successful submission on behalf of a client who wished to use the extension of discretion that is set out or who wished to ask the court to use the discretion set out in Amendment No. 57. If my noble friend applies his mind to the conduct of the trial, he will see the difficulties that he will face in advancing the argument that evidence may be introduced in order to ensure a fair trial.

I hope that I shall be forgiven for not participating earlier in debates on the Bill. For that reason, I ask my noble friend to have another look at Amendment No. 57, together with Amendment No. 58 proposed by my noble friend Lady Mallalieu and to adopt the latter. It seems to me that Amendment No. 58 gives sufficient judicial discretion. That is what we seek: a fair trial with a judge who has sufficient room to make a fair and right decision on whether to admit evidence.

4.15 p.m.

Baroness Lockwood: My Lords, the debate so far has concentrated on the views of judges and lawyers. I believe that I am the first non-lawyer to take part in the discussion. I do not wish to consider the issue from the point of view of whether judges have sufficient discretion to enable them to carry through a fair trial. I wish to consider it from the point of view of women. It is women who are most likely to be the victims of rape.

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There is no way in which a woman who has suffered from rape can be compensated. She can get nothing out of the trial of the defendant. She has been raped and no matter what happens, that experience remains with her and will remain with her for the rest of her life. My noble friend Lady Mallalieu said that there was no need for the Minister to talk any more about the abhorrence we all have of rape and the suffering which some women have experienced in the past when they have reported it and have taken a case through to prosecution. We all know that that should not now happen. Therefore, the woman is not likely to be subjected to that distress. My noble friend said that we were all agreed about it.

However, there is still much apprehension and disagreement, even about the Bill as at present drafted. Some 200 women's organisations have made representations to the Home Secretary about the Bill because it did not go far enough from their point of view. They wanted a woman's previous sexual experience to be completely excluded from the Bill. So there are two sides to the argument.

Certainly, women who have been victims of rape do not want to be put on trial or perceived to be put on trial for having been a victim and to have their past sexual experience taken into account. It is not only a question of whether it is good administration of the law, as the noble and learned Lord the Lord Chief Justice said earlier; it is also a question of whether it is perceived to be a good law. If women do not perceive it to be a good law and if they feel that it does not give them sufficient protection, they will not use it. No matter how we might argue about legal niceties in this House, women will not press their case so that it can be brought to trial.

I believe that we must be careful about the argument of a judge's discretion. We must also consider it from the point of view of the woman who is or has been a victim of such a crime. We want a law that will protect women against rapists. That is the whole purpose of the law: to provide protection against such crimes. I suggest that the import of the amendments to be moved by my noble friend--whether or not noble Lords agree that he has the wording just right--is as far as we can go if we are to provide justice for both women and the very few people who are brought before the court as a result of unfounded allegations of rape being made against them.

Lord Goodhart: My Lords, this is the first occasion on which I have spoken in the debates on this Bill. I do so now with some reluctance because I have not been able to attend as many of the previous debates as I would have wished. Part II of the Bill has given rise to very important divisions of opinion on both the Government Benches and these Benches. That was obvious in the debate at Committee stage on the cross-examination of complainants by the accused in rape cases. Had I then been present I would have been in complete agreement with what was said by my noble friends Lord Lester of Herne Hill and Lord Russell.

As to the issues covered by these amendments, there has been a similar division of opinion. I agree that the evidence of the previous sexual history of a complainant

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should not be admitted unless it is relevant. I also agree that evidence that a complainant has had sex with other men, even promiscuous sex, is not in itself relevant.

I also agree, however, that evidence which can reasonably be regarded as relevant to the defence must be admitted even if it involves the complainant's sexual conduct with other people. Any defendant must be entitled to rely on all relevant evidence that may help his case if miscarriages of justice are not to occur. That is particularly true in a rape case, because a wrongful conviction for such an offence will have consequences that are even more devastating than wrongful convictions for other types of crime. The noble Baroness, Lady Lockwood, has just said--I am in entire agreement with her--that nothing in a trial can provide adequate compensation for a complainant who has been raped. But equally, although in an entirely different way, I believe that there can be no adequate compensation for anybody who has served a sentence of imprisonment as a result of a wrongful conviction for rape. I am therefore unwilling to support Clause 40 in its present form.

There is, however, one matter that concerns me: the one-sided nature of leave to consider evidence of the sexual history of the complainant under the present law. Frankly, it appears to me to be only fair that if leave is given to cross-examine a complainant on her sexual history the defendant's own sexual history should become open to investigation if that is relevant. There is a long-standing principle that if a defendant attacks the character of a prosecution witness his own previous record becomes admissible.

It was also held in Hudson's case in, I believe, 1943 that to raise a defence of consent was not ipso facto an attack on the character of the complainant. I accept that as a correct decision and I do not seek in any way to change that rule. But I find it unacceptable that a defendant should be barred from raising the sexual history of the complainant if it is relevant. I find it equally unacceptable and unfair that a defendant with a long history of sex offences can go into the history of the complainant's sexual relationships with other men without having to disclose his own record to the jury. Fairness demands that leave to investigate the previous sexual history of the complainant with other people should make it possible to open up the previous sexual history of the defendant where that can be regarded as relevant. I believe that that would discourage applications for leave to go into the sexual history of the complainant unless the results of that investigation were thought likely to be persuasive.

I hope, therefore, that the Government will accept the amendment in the name of the noble Baroness, Lady Mallalieu. If not, I shall support that amendment or the amendment in the name of the noble and learned Lord, Lord Ackner, if that is moved. But I also hope that the Government will consider amending the Bill to allow the issue of a defendant's sexual history to be raised where leave has been given to raise the issue of the complainant's sexual history.


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