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Lord Cameron of Lochbroom: Before the noble and learned Lord sits down, I should like to ask him a question. He indicated that he has charged many juries on rape cases north of the Border. I wonder whether his experience is similar to mine; namely, that on very infrequent occasions have I ever had to deal with the issue of "honest belief".

Lord McCluskey: The short answer to that question is that I have never, in my entire experience as a

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prosecutor for over 12 years, as a defence counsel for many years and as a judge for some 19 years, encountered that defence.

Lord Lucas: I wish to make two brief points. First, I want to encourage my noble friend Lady Noakes not to disparage professional views. She has, as have I, spent most of her life working as an accountant and thus putting great weight on what accountants have to say. I have argued for a long time over financial affairs, but ultimately you must give in. For the most part, when accountants say that something is impracticable, they are right. Also, it can be dangerous to go against their advice.

Secondly, I do not think that it is a good idea to introduce the concept of "reasonable" into long-standing human relationships. Many of the cases we are considering here concern incidents that take place within the context of relationships that have been running for a good long time. Human relationships are varied and extremely strange when looked at by an outsider. Trying to view other people's relationships as something inherently reasonable is, I think, mistaken. People have their own ways of living and working things out, in particular within close relationships. Surely it is better to concentrate on the facts of the case rather than to introduce a strange third party, as if there was an objective view of human relationships.

6 p.m.

Lord Falconer of Thoroton: I agree with the noble Viscount, Lord Bledisloe, that my earlier intervention was confusing and confused. We have had an extremely helpful debate on the principle. I congratulate the noble Earl, Lord Onslow, for spotting that it was worthwhile to debate the principle of whether or not one should import an objective element into the defence of consent. The issue arises not only in cases of rape but in cases of sexual assault and penetration.

The issue we are debating can be summarised as follows. No crime currently is committed where a person is forced against her will to have sexual intercourse with a person who can convince a court that he honestly interpreted whatever happened as consent to sex however unreasonable such a belief might be. Should that remain the law, or are there benefits in changing the law?

At this stage, I shall not debate the precise detail of how to introduce an objective element; the question is whether or not an objective element should be introduced. We believe that it should be, for two reasons. First, it is a more just approach; secondly, it is likely to produce more convictions. However, I am not able to say what the increased number would be.

I thoroughly endorse what the noble Baroness, Lady Howarth, said—namely, that this is not a dispute between the lawyers on the one hand and the Baronesses on the other. This should be an earnest endeavour by all of us to find the right answer. It is not only lawyers in this country who are fairly divided in their views. For example, the Criminal Bar

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Association does not oppose the introduction of an objective element and many other common law and other jurisdictions throughout the world have introduced an objective element in relation to the law of rape and other serious sexual offences. So let us be under no illusion that it is only the lawyers who wish to keep the law as it stands; they are themselves divided.

Equally, we should not think that, because the wholly admirable Mrs Justice Heilbron in the 1970s took the view that there should not be a change, the position has stood still since then. We need to look at the question afresh and come to a reasonable conclusion.

What are the arguments for introducing an objective element? The Law Commission, when referring to the purely subjective rule, stated:


    "we think it would be remarkable if the Morgan rule"—

which is the purely subjective rule—


    "did not sometimes have the effect of encouraging a jury to accept a bogus defence".

So objective analysis suggests that if one continues with the Morgan defence it will lead to acquittals where there should not be acquittals.

What does justice suggest is the right answer? The mistaken belief will often arise in a situation where it is easy to seek consent and the cost to the victim of the forced sexual activity is very high. It is not unfair to ask any person to take care to ensure that his partner is consenting and for him to be at risk of a prosecution if he does not. It easy to raise the defence of mistaken belief in consent but very hard for the prosecution to disprove it.

There is no justice in a situation where a person who has been raped, or subjected to other forced sexual activity, sees an assailant go free because of a belief that society as a whole would have found unreasonable or completely unreasonable or totally unreasonable. In considering where justice lies, it is important to consider not only the interests of the defendant but the interests of the victim. In circumstances where the defendant has behaved wholly unreasonably in believing that there is consent and could have taken steps to put the position beyond doubt, where should the risk lie? Should it lie with the victim who has, through her own experience, been raped in the sense that she has sexual intercourse forced upon her without her consent; or should it lie with the defendant who, although extraordinarily unreasonably, honestly believed that she consented? The defendant would be acquitted, rightly, under the current law—but, we would say, wrongly as a matter of justice—whereas the victim will suffer from the humiliation of being raped and not receiving justice.

It is a difficult balance. It should not be determined by political correctness but by something that reflects people's understanding of what is or is not just. I am struck by the fact that the noble and learned Lord, Lord Lloyd of Berwick, the noble Lord, Lord Thomas of Gresford, and my noble friend Lady Mallalieu, all say that where the belief in consent is wholly unreasonable the jury will not acquit. If noble Lords

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believe that, surely the right course for the Committee is to ensure that, with simplicity, that approach is reflected in the law.

The noble Lord, Thomas of Gresford, believes that that is right; the noble Lord, Lord Alexander of Weedon, believes that that is right. They question whether the method by which we seek to achieve it will deliver that result, but in terms of increasing legitimate convictions—by which I mean defendants are convicted because they have committed the wrong—and in relation to delivering justice—by which I mean ensuring that rape victims feel that the system understands their predicament and produces a just result—the change to introduce an objective element is the right approach.

My noble friend Lord Campbell-Savours and the noble and learned Lord, Lord Morris of Aberavon, legitimately asked why so many cases are failing. Let me be clear about the statistics. Seven per cent of reported rapes end in a conviction; many cases do not lead to a charge being brought or continued with by the Crown Prosecution Service; the rate of conviction in respect of charges pursued and brought to court is about 45 per cent. It is important to be clear about the figures. The Crown Prosecution Service is obliged to address such cases in the way it addresses every other case—that is, there must be more than a 50 per cent chance of success and it must be in the public interest for the case to be brought. There is no difference in the approach to these issues from the approach to any other issues.

As to the approach of the Judicial Studies Board—which I believe to be correct; I make no complaint—it will not produce standard directions until it sees the final form of the Bill; that is, when it becomes an Act of Parliament. The senior judiciary responded to Setting the Boundaries shortly before the Bill was introduced. I have had conversations with the senior judiciary about the detail of the provisions subsequent to the publication of the Bill.

Lord Lloyd of Berwick: Did I understand the Minister to say that in 45 per cent of cases brought to court there is a conviction? If so, why does he believe that figure is too low?

Lord Falconer of Thoroton: There is an issue both in relation to the consideration given to whether or not a charge should be brought and in relation to what happens when the case gets to trial. At both stages the law needs to reflect what we would regard as a sensible position. As to whether the conviction rate is too high or too low, I believe that 45 per cent is too low.

Lord Carlile of Berriew: Can the Minister confirm that he means that nobody has been asked to produce a specimen direction, despite requests being made on Second Reading that this should be done, and therefore nobody has tested whether such a specimen direction would have the sort of technical problems of which the noble Baroness, Lady Howarth, rightly complains?

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Lord Falconer of Thoroton: The Judicial Studies Board has not; other people have been asked, including the noble Lord, Lord Thomas of Gresford, and counsel on behalf of the Government. We need to see what the Bill looks like later on. I think that after Committee is the time to produce a specimen direction. The amendments that the Government have tabled to Clause 78 will be incorporated in the Bill, if the Committee is minded to pass them, and we can see how complex this is.


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