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Lord Falconer of Thoroton: Before the debate, the noble Lord, Lord Campbell of Alloway, and I agreed that we would deal with these issues during discussion on a series of amendments that are to come. I do not in any way want to inhibit what noble Lords wish to say, but we are slightly approaching this matter with only half the arguments. Members of the Committee will perhaps consider it more appropriate to move on to the next group of amendments in which we can deal with the issue more fully.

Lord Thomas of Gresford: It seems to me that Amendments Nos. 4 and 5 illustrate the difficulties and the unworkability—if I may use the expression of the noble and learned Lord, Lord Lloyd—of these subsections. However, the principle of the objective versus the subjective approach to consent arises directly on this issue.

Baroness Noakes: I support that. I had understood that that was how we proposed to deal with the matter—that is, we would take the principle of objective or subjective tests, then go on to deal with my amendments, beginning with Amendment No. 4, concerning the issue of how "reasonableness" works in practice, and then go on to the Clause 78 amendments. I am sorry if I misunderstood what was proposed.

Lord Campbell of Alloway: I believe that I have been misunderstood—or, rather, the principle has not been but the machinery has. I understood that I would be moving Amendment No. 2, consequential with Amendment No. 3, and, at the end of our discussion today, would ask for it to be withdrawn so that it may be considered on Report. If we reached that stage today, I would then move Amendment No. 6 on the same basis. I was not suggesting, or meaning to suggest, that somehow or other I would pre-empt either noble and learned Lord in anything they wished to do, but that we would certainly have moved Amendments Nos. 2 and 6 by the conclusion of today's debate.

The Earl of Onslow: As someone who is not an expert in this at all but who has been listening with complete fascination—

The Lord Bishop of Guildford: Perhaps I may—

The Earl of Onslow: This is a procedural point. I speak as someone who has been listening with complete fascination to the discussion. My mind is a blank sheet. Members of the Committee may say that it has been that frequently. There seem to me to be two principles. First, do we allow "reasonableness"? If not, then there is no point in discussing the matter further. The noble and learned Lord, Lord Lloyd, raised the question of whether or not we allow it and the matter of the guilty mind. Secondly, if we accept

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"reasonableness", then we go on to discuss what my noble friend on the Front Bench said. I raise this point in order to make the issue simple for a simple soul such as myself.

The Lord Bishop of Guildford: For the third time of asking, I want to address the issue from a different perspective without approaching it with the expertise that the lawyers bring to it. I wait upon them with regard to the adequacy of the drafting. However, as we attend to the detail of these clauses, it is worth bearing in mind that consent is the very foundation of the public understanding of marriage in public law. It is at the heart of the doctrine of matrimony, as expressed in the law.

One may not enter into that institution, with all its rights, duties and responsibilities, without there being manifest consent. That doctrine determines the character of the relationship and the institution that then follows. All matrimonial life must operate on the basis of the consent of the parties. Indeed, if one party, in terms of coming together in bodily union, does not offer his or her consent, that is a ground under a number of circumstances for the dissolution of a marriage.

That doctrine is at the heart of all our law with regard to sexual relationships. The understanding of consent flows out from the public doctrine of marriage to everything else. Whether or not this clause and its subsections are adequately drafted, when it comes to the matter of rape we have a responsibility to be satisfied that we have made adequate provision in public law to demonstrate that consent has been given.

Even if we believe that these proposals do not quite work in terms of the law—we must listen carefully to what those with experience in this area share with us—nevertheless, if in terms of the practice of rape cases in the courts there is an issue about demonstrating consent, then we have in front of us a very serious matter in law. That is so not only in the narrow terms of the understanding of rape but in terms of upholding the public doctrine that is embedded in our understanding of marriage.

Viscount Bledisloe: I am sure that the interventions of the noble and learned Lord, Lord Falconer, were very well intentioned. I believe, however, that they were confused or at least—to be kind—confusing. The basis of this amendment is that it retains the law as it is—namely, that it is a defence to have an honest belief in consent—and does not impose a new test whereby one is guilty if one is negligent, as the noble and learned Lord, Lord Lloyd, put it. Any question as to what the tests for "reasonableness" are arises only if we have this new definition of the offence. Surely the issue before us at present is whether or not the new idea that the belief must be reasonable is right and should stand.

Let us be clear. What is proposed is that for rape, and rape alone, the concept of what constitutes a guilty mind will change. If I am accused of stealing your property, it is a defence if I show an honest belief that I had a claim of right to that property. That is the

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general test of the criminal law. It is now said that in relation to rape we should abolish that test and say that it is an offence only if a person showed a reasonable belief that the other party had consented.

That is a fundamental change in the concept of the law. Why is it said that we should make that change? It is apparently because the conviction rate is very low and, seemingly, the Government are under pressure to change it. The speech made by the noble and learned Lord at Second Reading is somewhat revealing on this issue. He said:

    "At the moment, only a fraction of sex offences recorded by the police end with a guilty conviction".—[Official Report, 13/2/03; col. 771.]

That is not what he meant. He meant:

    "At the moment, only a fraction of complaints of sex offences recorded by the police end in conviction".

There is a great danger that we shall forget the very important distinction that not every complaint is valid. The noble Baroness, Lady Mallalieu, pointed out why rape is singularly liable to false complaints. Of course, because the act will also normally take place in private, it is an alleged offence which is singularly difficult to prove. Personally I have no doubt that the reason for the diminishing number of convictions in relation to complaints is that lately people have been encouraged more—I do not disprove this—to complain about date rape, which is much more difficult to prove.

If something is difficult to prove, that may be a reason to alter the system of evidence, or something of that kind, but it is not a reason to redefine the offence so that something is constituted illegal that previously was not illegal. Perhaps one may use a football analogy without being thought to be frivolous: if not enough goals are being scored, you may change the offside rule but you do not suddenly say that in future a corner shall count as a goal. That is what the Government are doing. They are saying that something which was not a crime before shall now be this very serious crime. They are changing the law in relation to rape and nothing else.

It is important that we consider that problem before we go on to consider the difficult and fancy problems concerning what shall constitute the test of reasonableness. I suggest that the next two amendments will demonstrate just how difficult a problem that will be and how one will mire oneself, as the noble and learned Lord, Lord Lloyd, said, and the jury in impossible tests. Be that as it may, before we come to that let us consider whether we really believe that it is right that in rape and rape alone an honest belief that one was not committing a crime is not a defence.

Baroness Noakes: Again, I thank my noble friend Lord Campbell of Alloway and the noble and learned Lord, Lord Lloyd of Berwick, for initiating this debate. It is important that we debate this matter thoroughly. We had a good discussion on this topic at Second Reading. We are not quite re-running that today. At that time we had two camps. There was the lawyers' camp, in which almost all the lawyers spoke, except the noble and learned Lord, Lord Falconer—he

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did not join the lawyers' camp on that day—which objected to Clause 1(3) and the objective test of reasonableness. Another powerful camp at Second Reading, comprised mainly of noble Baronesses and led by the noble Baroness, Lady Gould of Potternewton, who I am sorry is not in her place, felt strongly that we need to consider changes in the law because of very low conviction rates. As a woman, I too am extremely concerned at such low conviction rates. That is why we on these Benches genuinely think it is worth considering whether there is a better way of formulating the offence which would result in more significant conviction rates.

Like many noble Lords I am sure we have all had large postbags on the subject of the Bill. I have not had one representation from outside this place which supports the amendment now before the House, which would do away with Clause 1(3). Many of the groups that wrote in, among which, perhaps surprisingly, is the Criminal Bar Association, have accepted the case for the abolition of the Morgan defence. Liberty comes within that category. The Metropolitan Police believe that Clause 1(3) is necessary because the present law weights the process against the victim and in favour of the assailant. I am sure that those noble Lords who received the powerful submission from the Rape Crisis Federation will have read of the devastating effect on women of rape, the trial process and the impact of what they perceive as incorrect acquittals.

We should not believe that there is a not strong body of opinion which genuinely supports considering ways of amending the law so as to affect conviction rates. I refer not only to the 7 per cent conviction rates from complaints, but also to the high level of acquittals. Nearly 60 per cent of rape cases involving women result in acquittals. We on these Benches do not find that acceptable.

I shall listen carefully to what the noble and learned Lord says on conviction rates and, in particular, to what the Home Office believes will be the impact of the Bill. There have been many who, if they have accepted the new test, have stated, "But it will not make any difference in practice". We have heard some of that today. That is a serious complaint that needs to be considered. If the proposed change in the law, with all the objections that we have heard, results in not a single extra conviction, there would be legitimate concerns about whether we have taken the right approach. I hope the Minister will be able to comment on how the analysis by the Home Office considered the effect which a change in the law would have had on past cases which have resulted in acquittals or in complaints not coming to trial. Subject to that, we believe that it is worth trying an alternative approach to the Morgan defence, and an objective approach to reasonableness.

4.45 p.m.

Lord Ackner: Is the noble Baroness aware that after the decision in Morgan in the House of Lords—the one that decided that an honest belief was sufficient—there was a prolonged outcry by the public? When the matter went to Lady Justice Heilbron's committee, the

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assumption was that it would report against that decision. It did precisely the opposite and recommended that the law was sound; that there should be an addition to referring to the evidence of what was reasonable, and that it was then re-enacted. Therefore, perhaps the noble Baroness will agree that the public outcry is not much assistance on these matters.

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