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Baroness Blatch: Very often in a case it is the word of the person making the accusation against the word of the defendant. It is not always the case that it has been established that a rape took place or, indeed, that even sexual intercourse took place. The accused makes the accusation and the defendant is defending a negative because he continues to say, "I did not do it".
Clause 1(3) introduces a test against whatever argument is put up by the defendant and asks, "Do you believe what that person says? Would what is said by that person about what they believe happened or did not happen on that particular occasion be said by a reasonable person? Is it believable?" It seems to me to be very suspect if, on the grounds that the person is not convincing or even if it is perceived that that person is not telling the truth, irrespective of that person's conditionwhether that person is mentally impaired, just a waster or is reasonablethe test is put and on the basis of whether it is believed that someone is telling the truth rape is established.
Like the noble Viscount, Lord Bledisloe, if the concept of a reasonable man test has to be made, I would rather have a definition of the way in which that person is being judged. However, like many others who think that subsection (3) is unworkable, I believe there is the difficulty of pressing a test of a reasonable man with either no definitionin other words the reasonable man is in the eye of the beholder, the members of the juryor with the amendment tabled by my noble friend, which at least defines that the person is being judged in the shoes that he wears.
We are speaking of a case in which no one knows whether rape has been committed or even whether sexual intercourse has taken place, and in which everyone is making judgments in a vacuum. It seems to me that Clause 1(3) throws up so many problems that I cannot see how it could work in practice. However, if it has to work at all, some definition of what is a reasonable person, in other words how that person would be judged, needs to bear at least some characteristics of the person concerned.
Lord Falconer of Thoroton: As regards the first point raised by the noble Baroness, Lady Blatch, she is right. The question only arises once the jury is satisfied, first, that the act of sexual intercourse has taken place and, secondly, that it was without consent. It arises only
As far as concerns the question of whether one wants to try to define in detail the reasonable person and what would be his or her approach to the facts, I do not think that would be right. What one is saying, as in many other areas of the law, is that the jury must decide what was reasonable. The jury has to decide, for example, in relation to provocation, how a reasonable person would have acted. The jury has to decide whether or not the amount of defence used by the defendant was reasonable self-defence. The more one complicates it, the more one adds accretion to accretion, the harder one makes it for the jury to decide and the more one gets away from the basic question, "Was it reasonable?" I believe that the approach we have adopted gets to the point.
We shall listen carefully to what is said. However, I do not believe that even the most experienced lawyers in this House believe that one cannot ask a jury to evaluate the question of the reasonableness of the behaviour of a particular defendant.
Viscount Bledisloe: What was said by the Minister in his speech was reasonable. However, the trouble is that it conflicts with the words in the Bill. The words in the Bill require you to take the abstract objective, reasonable person and decide what he would have done in the circumstances. "Circumstances" means surrounding facts; that is, the party they had been to; what the lady was wearing; what the lady had said, and so forth. The circumstances are not the peculiar characteristics of the individual: his extreme youth, his sexual inexperience, his mental health, and so forth.
If the Minister was serious in his reply to the noble Lord, Lord Carlile, that the mental health of the individual would be taken into account as being a characteristic, there must be some such words as proposed by the amendment and then it is not the circumstances at all; it is a reasonable person of the type of the particular accused.
Lord Falconer of Thoroton: I yield to no one in the experience of the noble Viscount in relation to criminal law. I know that his experience is vast in that respect. I have set out what we seek to achieve in relation to the Bill. If we have not managed that as a matter of law, we shall consider what was said by the noble Viscount in relation to that.
Lord Campbell of Alloway: I totally agree with the reservations of my noble friend Lady Blatch. My noble friend seeks some form of definition on the perfectly logical and reasonable basis that without it no jury will understand what it has to deal with. I believe the reply was, "We are working on a form of words". Perhaps that is not right.
Lord Falconer of Thoroton: I thank the noble Lord for giving way. We believe that one can pose to the jury the question of how a reasonable man would have behaved in all the circumstances and the jury would understand the question.
Lord Campbell of Alloway: I am grateful to the noble and learned Lord. It comes to this: it is not workable as it stands. What will be done to try to make it more workable if we are to abolish actual intention? How will that be done?
Lord Thomas of Gresford: If the noble and learned Lord were to consider the standard direction to a jury in provocation where the reasonable person comes to the fore, he would find that if the jury is satisfied that the ingredients of murder have been made out, it may consider whether murder should be reduced to manslaughter by reason of provocation either by word or deed, which, first, makes the defendant no longer the master of his own mind and secondly would make a reasonable person sharing the same characteristics of the defendant of age, sex and background act in the way that the defendant had acted. The word "characteristic" may be statutory, I cannot remember, but is certainly in the direction to the jury. Those are familiar words which are certainly not "in all the circumstances". If characteristics are to be conveyed in the statute I respectfully suggest that the word that is commonly used should be employed.
Lord Lucas: In one of his replies the noble and learned Lord talked about a "reasonably held belief". That is an excellent phrase and I wish the noble and learned Lord would put it in his Bill. I find it easy to understand and it adapts to all the circumstances.
I find this situation difficult to understand: suppose one has a couple in a long-term sado-masochistic relationship, who do all kinds of strange and wonderful things to each other. After one particular session the woman cries rape. What function has a "reasonable man" to perform in order to have any view on that relationship? One cannot impose a "reasonable man" on that relationship and expect him to start having views. The whole thing is bizarre and strange. None the less, it is a circumstance in which rape could have taken place.
One must establish the reasonableness of the belief of the man in dealing with consent. But this "reasonable man" creature does not belong there. I wish the noble and learned Lord would return to the ordinary English he uses when describing the Bill's function and put it in the statute rather than using the words we have in front of us.
Lord Falconer of Thoroton: I take up the points of the noble Lords, Lord Thomas and Lord Lucas. I am tempted to ask, although I shall not, where, in the sado-masochistic relationship described by the noble Lord, does "reasonably held belief" fit. It raises all the same legal problems.
The words, "the characteristics of the defendant" are not in the provocation statute. The courts have developed an approach. That is, keep it simple, leave it to the jury, and do not think about the reasonable obsessive, the reasonable sado-masochist or the reasonable glue-sniffer. Just put the issue straight to the jury. That is what we have done in this provision.
We could talk about the issue for a long time. The question is whether we have reached a point where the judge is able to ask the jury whether the person acted reasonably in all the circumstances. We think it is a simple question and one a jury can understand.
Baroness Noakes: I thank all noble Lords who have taken part in the debate and in particular for contributing to my increasing legal knowledge. I now have a greater knowledge of the defence of provocation, which may well prove useful one day.
The Minister says that it is a simple question, which is put to the jury for it to decide. I understand the simplicity of that approach. However, I have raised my concerns. I tabled these amendments because I was uncertain that juries will in practice be able to handle Clause 1(3) as drafted without an amendment to deal with the particular characteristics of the defendant before them. I shall of course read carefully what the noble and learned Lord said and reflect further on the matter. But I am troubled that it may not be clear beyond peradventure that the present formulation will mean that instances such as learning disability or extreme youth would automatically result in those characteristics of the defendant being taken into account.
Beyond that, we are underlining a wider concern about how the Government's redraft of the sexual offences legislation will work in practice. I know that we shall return to that matter in due course. For the time being, I beg leave to withdraw the amendment.