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Lord Goodhart: My Lords, I am grateful to the Minister for giving way. I am aware that in order to give such evidence a change in the law would be required. I suggested it was analogy rather than directly applying the law to different circumstances.
Lord Williams of Mostyn: My Lords, I accept that. I referred to the noble Lord's contribution only to underline my point that it is difficult in this area to come to a conclusion of absolute certainty.
I am grateful to the noble Lord, Lord Cope, for supporting the fact that I was indicating that an approach which he had outlined in earlier debates was different from the approach I was coming to. He is right. One cannot say "parentheses", but my comment was plainly in parentheses by way of gloss on his view. He asked particularly for the definition of the phrase "an issue of consent" in Clause 40(3)(a) and (b). I nodded in
The noble Lord, Lord Thomas of Gresford, commended the Canadian experience, which was further accurately amplified by the noble Lord, Lord Lester of Herne Hill. The noble Lord, Lord Thomas, in particular indicated that in his view Canada got its legislation wrong the first time. The noble Lord, Lord Lester, indicated the same and said that Canada changed it. When I said on an earlier occasion that we had paid attention to the experience of Canada, it was to the fact that there was a challenge on the human rights basis. The ruling by the Canadian Supreme Court led to the new scheme which we believe is not dissimilar to our present one. Indeed, the noble Lord, Lord Thomas, referred to the detail of the Canadian legislation about hearing applications. Our Clause 42 deals with procedure on applications under Clause 40. That scheme, as we think it appropriate to our jurisdiction, is set out in Clause 42.
The amendments are not all the same. If mishap struck and, for instance, the noble and learned Lord, Lord Ackner, succeeded in his amendment, it would not have the same effect as the amendment of the noble Baroness, Lady Mallalieu. Her amendment is quite wide, stating:
In some circumstances, the question of relevance has been elided. Under Clause 40 as it presently stands, if an issue is relevant the questions can be asked. The clause provides that questions may be asked and evidence adduced only if subsections (3) or (5) apply. Subsection (3) relates to a relevant issue in the case, other than consent, and the 24-hour saver which has been expanded, but I will not develop that theme because it is contained in the next block of amendments. Subsection (5) relates to rebuttal evidence which is to be allowed in appropriate circumstances. Therefore, under those subsections the questions can be asked and the evidence adduced if it relates to the relevant issue.
I believe--and I hope that I am speaking carefully and courteously--that on some occasions some of the heat engendered in the debate misunderstands because of a misreading of the scheme of Clause 40. We are saying, plainly and shortly, that if subsections (3) or (5)
We come to a further difference. I assert again--and I am sorry if I am annoying my noble friend Lady Mallalieu--that the fact that a woman has consented to sexual activity on an earlier occasion, with perhaps another man in different circumstances, is not relevant to whether she consented to sexual relations with the defendant on a particular occasion. That is a matter that one either accepts or does not accept. I shall not apologise either to the noble Baroness, who is my friend, or to your Lordships, who are listening so patiently to this long debate. I shall not resile from that proposition.
In certain circumstances, as the noble Lord, Lord Cope of Berkeley, correctly elicited from the letter of my noble friend Lady Jay and from what I have said on a number of occasions, a complainant's previous sexual behaviour can be relevant, but those circumstances are restricted. That is the point of Clause 40. It is not a misunderstanding; it is intended and designed to introduce restrictions and criteria which judges will be obliged to bear in mind. I go back to the phrase of the noble Lord, Lord Thomas of Gresford, "guides and constraints" and I add to it, "included in the statute".
We believe that the outcome of some previous case law was not satisfactory and that we have the right to set down the statutory guides and constraints in this Bill. That will mean the achievement of more consistency of approach and complainants will feel that they have the protection of consistency and certainty. Again, I recognise that some wish to leave it to the discretion--the noble and learned Lord, Lord Ackner, prefers to call it judgment--of the individual judges but we prefer and have reached the policy conclusion that it should be on the face of the Bill.
I flag up the rebuttal of prosecution evidence. It is plainly there. We are not driven by the belief that all complainants are true victims. We do not believe that every complainant is honest and truthful nor that every accused is guilty. We are providing a proper regime. Rebuttal of prosecution evidence has hardly been mentioned in this context but there is provision for it in the Bill.
The Bill seeks to focus on the true issues at trial, not irrelevant fishing nor suggestions that because a woman had sex on one occasion with another person, perhaps, or even the person in question, it is relevant to the issue of consent.
Under the provisions of Clause 40, in this difficult class of case we wish to focus on the true issues at trial and the determination of the facts on the occasion in question. We do not want unjust convictions nor unjust acquittals. Juries should not be allowed to make moral judgments about the complainant's character on the basis of her sexual habits, which, I repeat, are matters of her decision and personal property, and simply acquit the defendant because of it.
I repeat that Clause 40 allows the evidence that we have been discussing to be introduced only when it is relevant to an issue. It must relate to specific alleged instances of sexual behaviour, not vague allegations nor fishing expeditions which are looking for something with which to blacken the complainant's character. It must be of such significance that it may affect the jury's determination of the true issue in the case.
I do not believe that information about a complainant's previous sexual behaviour is directly relevant to credibility unless it directly undermines something claimed explicitly at trial. To allow otherwise derives from the basis that if a woman has had previous sexual experience, it suggests that she is untruthful or unreliable as a witness. I dispute that.
The noble Lord, Lord Hacking, referred to experience in criminal trials. We wish to be careful that evidence is not introduced on one apparent basis simply to impugn credibility. Of course a complainant's previous sexual behaviour may be relevant to credibility in some circumstances; for example, if she has made a statement about her sexual past which is not true. That is why we have not adopted the absolute position that in no circumstance may other previous sexual activity be relevant. A history of false complaints or false complaints about sexual behaviour is admissible because it goes to credibility. But it is not evidence about sexual behaviour; it is about untruthful conduct on prior occasions. There is a very clear difference.
We do not believe that a complainant's attitude to sexual relations should be admissible unless it is very closely linked in time to the offence or--and this is the basis of the government amendments--is so unlikely and so similar to the defendant's version that it could not reasonably be considered a coincidence.
It is not fair to say that we have not listened. My noble friend Lady Mallalieu developed her Capulet scenario. I found it a shade unlikely as a prospect; nevertheless, it is reasonably possible and therefore I tabled my amendments to meet her concerns. But it does not include general evidence of promiscuity or having sex with someone of a different race or age. Consent on one occasion does not mean consent on another, and consent to one man does not mean consent to a different one.
There have been unfairnesses in the trials we have been discussing. I am conscious that one does not wish to do injustice to defendants. But defendants are not the only ones who have a legitimate interest in the conduct of trials. Of course, complainants do, and there is the wider public interest in securing not only the acquittals of those who are not guilty but also the convictions of those who are.
The one thing which has emerged from this debate is that there is a difference between belief in consent and consent. There is nothing in Clause 40 which will limit evidence which truly goes to belief in consent so long as one makes the rigorous analysis which is called for in those circumstances.
I do not believe that the worries and concerns which have been put forward are justified. The noble Baroness said that juries will be given less background information. They will certainly be given less information which, properly analysed, is not relevant. I agree with her.
The noble and learned Lord, Lord Ackner, spoke about a history of past promiscuity if it is particularly strong. Such a history does not go to credibility and it does not go to consent, except in the limited circumstances I have described. If the defendant knew of it, it may well go to a belief in consent or not.
At the end of this debate, which has gone on a little while now, we are coming to stances which have been fully described and which will not change. I recognise and, I hope, pay honourable regard to the concerns that practitioners, judges and lawyers have had. The voice of the complainant has been heard but from only three noble Lords. I do not suggest in the slightest that those who take a contrary view to mine are contemptuous of the fears expressed by women and those who speak on their behalf. It is a case in which one can honourably disagree with others who have an honourable stance. I believe that we have got this right. If one distinguishes between consent and belief in consent and between sexual activity and credibility, then one reaches the conclusion that with Clause 40 we have it right.
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