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Lord Morris of Aberavon: I shall ask two questions. As a member of the criminal Bar, I am in sympathy with the Government's aim of reducing what is regarded as an unacceptable rate of acquittals. The figures for cases that do not involve stranger rapes are intolerably high.

The problem is how to tackle it. I am concerned whether this is the right way. My first question is: why do we have such a high rate of acquittals? The noble and learned Lord, Lord Ackner, touched on many reasons, but on one in particular. I seek an answer to this question. Is the test for launching a prosecution the same as for all other offences? There are two tests. The first test is that of public interest. The second is whether there is a reasonable prospect of conviction.

Certainly, if the figures mean anything, a reasonable prospect of conviction does not manifest satisfactory completion of that test. Will the Minister tell us whether there is an element of political correctness once a complaint has been launched or is rape treated these days in exactly the same way as every other offence? If it is treated in exactly the same way, someone who takes the decision to prosecute takes a view different from what the eventual figures manifest as regards a reasonable prospect of conviction. They are wholly different, as we all know.

The second question has also been touched on by noble Lords. What is the expected change in the conviction rate if we pass this part of the Bill? In all the Home Office studies, there must have been a great deal of thought on this issue. Otherwise, I should hope that the Government would not have embarked on this at all. Members of the Committee need, and deserve, a clear indication. If not, our task would not have been worthwhile and it could lead to the conviction of the innocent. That is the last thing that we need.

Finally, the noble and learned Lord, Lord Ackner, has assisted the noble Lord, Lord Carlile, as regards the role of the Judicial Studies Board. We are grateful to him for having explored that issue and assisting the Committee. Having spent some time directing juries on many kinds of offences, it would be helpful if we had a specimen direction, as asked for by the noble Lord, Lord Carlile, and if it was made available before the next stage.

That is all I wish to put before Members of the Committee. The test of a reasonable person has always troubled the courts in so many spheres. The noble Lord, Lord Carlile, again mentioned the involvement of a person who certainly is not a reasonable person in that context; he is a very unreasonable person. Therefore, he might be inclined to take a different view. Indeed, on this particular test, the jury would take a wholly different view as regards his guilt; whereas, in fact, he may not, by ordinary standards of

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people, given his vulnerability and his deficiencies, be likely to be convicted of an intention to commit that offence at all.

5.30 p.m.

Lord Alexander of Weedon: I apologise to Members of the Committee that I was unable to take part at Second Reading. That is one reason why I wanted to listen carefully to this argument. I declare an interest as chairman of Justice, the all-party law reform group. The members of Justice are—as those of your Lordships who have received copies of our briefings will know—divided on the principles underlying this clause. That I fully understand. I readily recognise, as my noble friend Lady Noakes said, that there is a strong body of opinion that supports change. I recognise that this is an issue of real sensitivity. Undoubtedly, there are the genuine feelings and reactions of many people—not just women—that the concerns of women are taken too lightly by men and that juries tend to lean too readily against conviction.

Against that must be set—I now express a personal view—the sensitivity, which should not be scouted down because it is expressed largely by lawyers, of respect for the principles of the criminal law. Those have been fully set out by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Mallalieu. I do not seek to repeat them. However, we should be very careful before we depart, in the case of a serious offence, from the underlying principle that guilty mind or intent is at the heart of criminal law.

If there were more time, there would be some cogent passages to that effect from the case of Morgan that I should wish to cite. But I shall confine myself to drawing attention to one statement in the Law Commission consultation paper in which it stressed:

    "Mere negligence, in the sense of failing to realise what a reasonable man would have realised, could not possibly suffice to found criminal liability".

Yet it is entirely that approach which the Government now adopt. They do it in a way which seems particularly concerning. As I read Clause 1(3), it creates a completely objective test that must be answered in two separate parts. The first part is whether a reasonable person would, in all circumstances, doubt that there was consent. The second part is whether a reasonable person would consider the steps taken by the accused were sufficient to resolve the doubt. Therefore, there is a double test of objectivity included.

Will the Minister indicate whether he finds such a test present in any other aspect, even less serious, of the criminal law; or, indeed, whether he can think of an analogy within civil law? The concept of the doubt test of reasonableness also seems to emphasise the point being made eloquently by those more experienced in this field than myself, including the noble Lord, Lord Carlile, of the difficulty of directing a jury in this area.

There are others, particularly on the Cross Benches, far more qualified than I to indicate whether this would be a direction that would be practical to formulate and for a jury to comprehend. They, too,

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will potentially have views on whether the attempt to formulate such a direction might confuse the jury or lose its sympathy to such an extent that the level of convictions would drop. These are reasonable fears. It has been helpful that the position of the Judicial Studies Board has been clarified. But I should like to ask the Minister, what is the procedure on these occasions for consulting the judiciary? For example, was the Lord Chief Justice, on behalf of the body of judges, consulted before the publication of the Bill in order to have comment on the benefits of a change in the law and what I would call the workability? Were the judges asked whether they would welcome a situation in which a special verdict might be needed so as to decide what was the gravity of the offence in order to sentence the accused?

At present, I feel diffident in departing from the test put forward in Morgan. In one sense, I wish that it could have been debated in parallel with Amendment No. 8 tabled by the noble Lord, Lord Thomas, which suggests some change in the law, which might, arguably, be more reasonable. That, as I understand it, was the proposal broadly put forward by the sexual offences review and which I think has been adopted in Canada. But if the choice came between the present clause and leaving the test in Morgan, I would have no hesitation that there should be no change to the law. Ultimately, I should like to reserve my thoughts and views on whether it is possible to go along the route put forward by the noble Lord, Lord Thomas, in recognition that there is an issue on which people on the other side of the argument from the existing law feel strongly.

Baroness Howarth of Breckland: I stand as a social worker, a woman, against the lawyers. I am not sure where that puts me, but it does not put me on an emotional plane making an emotional argument. I want to make a reasoned argument on behalf of women. That puts me in difficulty, because, as I said previously, I have been aware of many women and young people who have not won their case because of difficulties and technicalities within the law once the Crown Prosecution Service has tried to take the case forward. Therefore, I am keen that whatever law we ultimately pass wins their case. I listened with great care to the noble and learned Lord, Lord Lloyd, who has great experience.

As I have been put partly on the other side of the fence, as it were, I want to address a couple of issues. First, I want to take out of the debate the phrase "political correctness". It is a great pity that in discussing these issues and the rights of women, we suggest that they may be concerned with, in the strange phrase, "political correctness", which these days has a slightly derogatory feel about it. That is extraordinarily hurtful to the kind of victims I spend my life with: they want nothing to do with political correctness, they want their rights to be heard and a response made to them.

Secondly, as I said to the Minister in a preliminary meeting I was able to attend, I do not believe that the Bill can attend to many of the difficulties we face. Had

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we managed to introduce the matrimonial causes legislation, which contained a great deal about mediation, we might have been able to deal with some of the family situations now going to court—indeed, they might never have gone to court had we had experienced people able to deal with them.

However, I remind the noble Lord, Lord Thomas, that the same figures could be held for murder and assault as for rape in domestic circumstances. Therefore, we should not treat those situations lightly—

Lord Thomas of Gresford: I do not treat those situations lightly at all. I consider that in the marital situation there is a great deal of violence. I have been practising for 40 years—both prosecuting and defending—and I know entirely the whole scene. I therefore resent the suggestion that I am taking it lightly.

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