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Lord Dholakia: My Lords, before the noble Lord sits down, an important point was raised by the noble Lord, Lord Cope of Berkeley. He mentioned Women Against Rape and the issue that was raised with the Women's Unit at the Cabinet Office. Does the reply from the Women's Unit reflect consultation with women's groups or is the Government's position reflected in that particular letter from the Women's Unit?

Lord Williams of Mostyn: My Lords, it is both, in fact. There has been consultation. It reflects the Government's position. I did not expand on that because I have placed a copy of the letter in the Library and I have sent a copy to noble Lords who were interested on the last occasion.

We have not reached a conclusion about the amendment to the law which may or may not have been proposed as a final stance by the Law Commission. My noble friend Lady Jay was saying that previous sexual history may sometimes be relevant. I believe it is. It is relevant in the circumstances which I have described; namely, a belief in consent or the contemporaneous sexual behaviour which I described. As I said earlier, I cannot adopt the absolutist view that in no circumstance in any criminal trial in this context is the previous sexual history of the complainant not relevant. It is necessary to define what is truly relevant on sustainable grounds.

Viscount Bledisloe: My Lords, before the noble Lord sits down, perhaps I may ask whether he accepts, on the construction of subsection (2) and the use of the word "and", that there will necessarily follow, at least in logic, situations where the judge considers that to exclude the

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evidence would render the conclusion unsafe but, nonetheless, he is debarred from admitting it by subsection (3) or subsection (5).

Lord Williams of Mostyn: My Lords, we need to turn our minds to the proper analysis of Clause 40.

5 p.m.

Lord Ackner: My Lords, we have had a long debate so I shall be relatively short. I have listened with great care to what the Minister has said and I have not yet followed what is his criticism of the law as it stands and the law as it is being administered.

I did not interrupt him, but I expect that he will agree with the concession made by the noble Lord, Lord Lester, about the observation in the Court of Appeal in the Viola case:

    "there is a grey area which exists between the two types of relevance, namely relevance to credit and relevance to an issue in the case. On one hand evidence of sexual promiscuity may be so strong"--
that is something that he has not accepted--

    "or so closely contemporaneous in time to the event in issue as to come near to, or indeed to reach, the border between mere credit and an issue in the case".
Nor have I heard any criticism of the final observation made in the Brown case, which is in these simple terms:

    "The real inquiry is whether on the facts of the particular case the complainant's attitude to sexual relations could be material upon which in these days a jury could reasonably rely to conclude that the complainant may indeed have consented to the sexual intercourse on the material occasion, despite her evidence to the contrary".

In every case it is a question of degree. That does not seem to have been faulted at all. If that is the case, this long, complex amendment is totally unnecessary and it leaves potential situations in which the judge can be satisfied that it is unfair not to permit questioning and yet is obliged not to permit it. An example of that is where he takes the view that the promiscuity was so strong as fairly to be relevant to the issue of credit.

I do not propose to seek to divide the House in relation to my Amendments Nos. 55A and 55B. Unless the noble Baroness, Lady Mallalieu, divides the House on Amendment No. 58, I propose to divide the House on Amendment No. 59. In those circumstances, and bearing in mind what I have said about Amendment No. 59, I beg leave to withdraw Amendment No. 55A and I shall not move Amendment No. 55B.

Amendment, by leave, withdrawn.

[Amendment No. 55B not moved.]

Lord Williams of Mostyn moved Amendment No. 56:

Page 28, line 32, leave out from ("alleged") to first ("the") in line 34 and insert--
("(i) to have taken place at or about the same time as").

The noble Lord said: My Lords, it was intended, when we finished the substantive discussion on the

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previous group of amendments in the name of the noble and learned Lord, Lord Ackner, that we should break and take the Statement.

Noble Lords: Hear, hear!

Lord Williams of Mostyn: My Lords, I hear noble Lords saying "Hear, hear!". I understand, of course, that my Amendment No. 56 is earlier than the amendment on which the noble and learned Lord, Lord Ackner, wishes to test the opinion of the House. I am perfectly happy to develop Amendment No. 56 because I can do it in less time than on the earlier amendment.

I hope that your Lordships will not think me discourteous, but it is an open-minded, open-hearted, full, generous concession to everything that the noble Baroness, Lady Mallalieu, urged last time. I listened with care. The noble Baroness says that she accepts it. If the noble Baroness accepts it, no further argument is needed. I beg to move.

Baroness Mallalieu: My Lords, I wish to place on record my gratitude to my noble friend. Although in his reply to the last group of amendments he has given no hope to those who moved them, he did the same on the previous occasion but has come back with these changes, which I fully acknowledge are wholesome and, to some extent, meet many of the concerns that I expressed. I am grateful to him.

Lord Cope of Berkeley: My Lords, I have already expressed my gratitude, particularly for the abolition of the 24-hour rule, and I do so again. That just about improves the Bill to the position of acceptability.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendment No. 57:

Page 28, line 35, at end insert (", or
(ii) to have been, in any respect, so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place at or about the same time as that event that the similarity cannot reasonably be explained as a coincidence.").

On Question, amendment agreed to.

[Amendment No. 57A not moved.]

Baroness Mallalieu had given notice of her intention to move Amendment No. 58:

Page 29, line 16, at end insert--
("( ) Notwithstanding the other provisions of this section, the court may, on application by or on behalf of any accused, give leave for any evidence to be adduced or question to be asked if and to the extent that the court considers such evidence or question to be necessary in the interests of justice to ensure a fair trial of the accused.").

The noble Baroness said: My Lords, I do not intend to press this amendment. However, I was profoundly disappointed by the Minister's remarks. I totally agree with him that irrelevant questions should not be asked. I totally agree with him that general or vague allegations

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of promiscuity should not be permitted. I totally agree with him that fishing expeditions are wrong and I totally agree with him that the true issues should be explored.

However, those are the considerations which judges currently apply when an application is made. Clause 40 causes me great concern because I am afraid that one will find that there are questions that a judge considers relevant to the issues which it would be unfair to the defendant to exclude, but which do not fit the narrow profiles that the clause currently contains.

That said, I do not propose to move the amendment in the hope that the Minister and those who advise him will consider the matter further, having heard expressions of concern from all sides of the House, including from some who support the principle of Clause 40, but are concerned about the complete removal of discretion in this respect.

[Amendment No. 58 not moved.]

Lord Thomas of Gresford moved Amendment No. 59:

Leave out Clause 40.

The noble Lord said: My Lords, I have heard everything that has been said by the noble Lord, Lord Williams of Mostyn, in relation to Clause 40 and I do not accept it. The issue, quite straightforwardly, is that a judicial discretion must remain in order that the court can properly deal with the particular circumstances of a case. Those circumstances are infinite and cannot be guessed by this House. Provisions of this sort, as I have indicated, have completely failed in New South Wales and they failed initially in Canada. I have listened carefully to the noble Lord to see whether there is a general judicial discretion in Clause 40. I have failed to find it. Accordingly, I seek the opinion of the House on this clause. I beg to move.

Lord Ackner: My Lords, I support that. I pray in aid everything that the noble Baroness, Lady Mallalieu, has just said and I need take the matter no further.

5.8 p.m.

On Question, Whether the said amendment (No. 59) shall be agreed to?

Their Lordships divided: Contents, 56; Not-Contents, 143.

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