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Lord Skelmersdale: I realise that the Committee wants to adjourn as soon as possible. The noble and learned Lord was good enough to answer a question of mine at Second Reading at col. 880. He commented on the 10-year sentence for date rape, the maximum life sentence for rape and the conjunction between the two. Clearly, life does not always mean life in these particular circumstances. It would help the progress of the Bill to know whether the 10 years is to run consecutively in the Government's view, or whether it is in addition to the sentence.
Lord Falconer of Thoroton: I am afraid that I have completely failed to understand the question. Consecutive to what, and to what particular 10-year sentence does the noble Lord refer? I do not have before me the issue of Hansard to which the noble Lord refers. Perhaps I may write to him with an answer.
Lord Campbell-Savours: Does my noble and learned friend intend to go back to the department between now and Report and further consider the amendments moved by the noble Lord, Lord Thomas of Gresford? Will he consider them again with his officials to see whether, on consideration, they provide a better way forward?
Lord Falconer of Thoroton: We have had an opportunity to consider the amendments. I shall consider all that has been said during the debate. The problems with the proposals are those that I, the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Noakes, have indicated. We shall certainly consider them. However, I should make it absolutely clear that at the moment there are some insurmountable hurdles in the way of it being a sensible proposal.
I have already dealt with the date rape point. I do not deal in Amendment No. 8 with date rape and in Amendment No. 10 with other types of rape. The aggravating circumstances do not relate to the particular way that rape occurs. If I said something different at Second Reading, then I have changed my position. I shall go back and read it because I do not recall ever being an advocate for a specific date rape charge. Perhaps I said something which caused the noble and learned Lord to believe that. He probably has it in front of him, but I shall check it and find out.
The noble and learned Lord, Lord Lloyd of Berwick, asked me what would be the mens rea of my proposed offences. It would that A does not have a belief that B consents to the penetration, but it is subject to the test of reasonableness. In a number of jurisdictions in the Australian states, in New Zealand, in Canada and I believe in parts of the United States a test of reasonableness is applied to that belief. However, I have already indicated to the Committeeand I have been supported by every lawyer with hands-on experience of rape cases who has spoken todaythat I do not know and have not come across any situation where an unreasonable but honest belief in the consent of the complainant has been urged as a defence. It is absolutely impossible to find out whether a jury has ever reached a conclusion about a defence
So the Morgan issue is really a red herring. I do not think it ever had any practical utility. As I pointed out to the noble and learned Lord, Lord Falconer, during an earlier debate, Morgan was convicted. His belief was based upon being told by the husband of the complainant that if he went to make love to her, she would struggle and protest, but that that was all part of it. He was convicted. It was held that although it was open to him to hold a belief that was unreasonable, nevertheless his appeal would not succeed. Since that timeI repeatthe collective experience of those who have spoken today is that we do not know of such a defence succeeding.
Who has the best "reasonable man" argument? The noble and learned Lord, Lord Falconer, thinks that we are talking the same language. We are not. He is talking about the hypothetical reasonable person with whom the defendant is to be compared. Before one can compare the defendant with that hypothetical reasonable person, one has to decide who is that hypothetical reasonable person, hence our earlier debate as to whether he shares the characteristics, or some of them, of the defendant. That is a different reasonable test from the one that I postulate of members of a jury looking at that defendant, considering all the circumstances and asking
I shall certainly return to the matter. I shall take into account the Minister's criticismsperhaps a little touching-up of some of the wording would be in orderbut I shall return to the matter on Report. I should be prepared to have further discussion with the Minister and his advisers on the topic if he thinks that that would be fruitful. However, for the moment, I beg leave to withdraw the amendment.
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