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Baroness Howarth of Breckland: Having decided not to speak much this evening, I feel the need to say to the noble Lord, Lord Campbell, that although some of us may not understand the detail of the law, our hearts are really with the victims of these crimes. Having listened to the previous debate, I understand the issue of rebuttal. However, I am concerned if we cannot deal anywhere in the Bill with situations in which victims are put in fear of a whole range of what the Minister

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described as issues and threats. I should like reassurance that that issue can be addressed somewhere in the Bill or in other legislation.

Lord Campbell of Alloway: May I ask the noble Baroness, with respect, very quickly, whether she includes among the victims of a rape trial those who have been erroneously convicted under false accusation?

Baroness Noakes: Before my noble friend decides what to do with his amendment, perhaps I might say to my noble friend Lord Campbell of Alloway that although I am not a lawyer, I come with some humility to take part in our consideration of the Bill. I hope that we will be able to contribute some insight although we may not do so with the full lawyerly knowledge of others. I hope that many noble Lords will have a valid contribution to make.

I turn to the amendments. I was reminded of the debate that we had on our first day in Committee about Clause 78 and the role of presumptions whether rebuttable or conclusive. I think underlying some of the concerns which have surfaced in this debate is a concern about the construction of Clause 78 as we amended it on our first day. I suspect that it is that to which we shall return on Report.

Lord Falconer of Thoroton: I reassure the noble Baroness, Lady Howarth, that where there is a case in which someone consents entirely because of a threat of violence in the future, that can found a conviction of rape. I hope that I have made it clear that nothing I have said should detract from that proposition—which was advanced very forcefully and effectively by the noble Baroness, Lady Noakes. I also completely join the noble Baroness, Lady Noakes, in saying that these debates would be pointless if they were only debates between lawyers. I hope that I have made that absolutely clear in all that I have said and done. I hope it is also clear that, above all, I am speaking to this as a Minister rather than as a lawyer.

Lord Lucas: I always thought that the proper relationship between the rest of us and lawyers is that we decide what to do and the lawyers tell us how to do it. I am extremely grateful to the noble and learned Lord for that long exposition of the Government's thinking behind the wording they have chosen for the Bill. Ultimately I do not share the relative lightness that he attaches to future violence. One can govern countries with the threat of future violence. Saddam did it very successfully for a very long time. As my noble friend said, we shall return to the subject in the context of Clause 78 as a whole. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 389 to 392 not moved.]

Baroness Noakes moved Amendment No. 393:

    Page 35, line 35, after "physical" insert "or mental"

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The noble Baroness said: I rise to move Amendment No. 393 which adds "or mental" to paragraph (e) of subsection (3) of Clause 78. We amended Clause 78 on our first Committee day, but the principle of the amendment remains in relation to the redrafted clause.

If accepted, the amendment would trigger a rebuttable presumption of lack of consent if the complainant could not communicate consent because of his or her mental disability. The paragraph as currently drafted triggers a presumption only if physical disability is involved. We do not understand the rationale for that. A person may not be able to communicate consent if he or she is so paralysed that he or she cannot communicate wishes. However, what is the logical distinction between a physical disability and a mental one?

I am aware that for the purposes of the offences under Clauses 33 to 37 a person who cannot communicate choice by reason of a mental disability is treated as being unable to refuse, and that hence they appear to be adequately catered for by the offences in the Bill.

My concern arises if for some reason the prosecution were mistakenly to commence proceedings for rape under Clause 1. That could happen because the nature of the mental disability was not immediately apparent. It is not a fanciful suggestion as some forms of mental disorder, such as autism, present themselves in more complex ways than, say, severe learning difficulties.

The Minister explained his reasons for moving his amendments to restructure the way the Bill dealt with under-13s. He said that one reason was to ensure that if there was an error as to age, and the defendant was charged under the wrong section, there may be a problem if the indictment had to be amended at a later stage and the defendant charged under another section. He explained the discretion that judges have and how they could not be relied on to accept an amended indictment.

If proceedings are commenced under subsection (1) and it is discovered that the defendant had not communicated lack of consent because of a mental disability, then the offence should have been charged under Clause 33. It may be too late to amend the indictment, according to the logic of what the Minister explained to us when he sought to restructure the way the Bill dealt with the under-13s clauses. My concern is that in a case such as this there may be no possibility to shift to Clause 33. There would not be a rebuttal presumption of lack of consent and it is possible that there would be an acquittal.

This amendment would give a belt and braces approach, which would allow the rebuttal presumption to come up under Clause 78 if an offence had been indicted under Clause 1, even though Clause 33 might turn out to be the better clause. My concern is that we

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ensure that there is no possibility that some forms of sexual offence escape being brought to justice. I beg to move.

Lord Campbell of Alloway: I support this amendment for the reasons I have given on two previous occasions and that are fully reported in the Official Report.

I complement my noble friend on her manner of presentation.

Lord Lucas: I have a difficulty—and I hope the Minister will help me—in imaging what kind of physical disability would prevent someone being able to communicate consent. It would seem to require unconsciousness. If you have a mental facility and any means of communicating and any degree of consciousness, you can communicate consent. It is astonishing what people who have very little physical ability left can do by way of communication, as Stephen Hawking and others have demonstrated. I find it difficult to imagine what circumstances the Bill as drafted will catch and I would be grateful if the Minister could enlighten me.

Lord Falconer of Thoroton: The noble Baroness, Lady Noakes, rightly acknowledges that we are already introducing a range of offences at Clauses 33 to 37 which are designed to protect those with a mental disorder that prevents them from being unable to refuse to take part in sexual activity. These offences specifically cover those who are unable to communicate their consent to sexual activity because of a mental disorder.

As I understand it, the noble Baroness is asks in her argument, what happens if you are charged under Clause 1 and it is too late to amend the charge to put it under Clauses 33 to 37? I accept this is a possibility although a remote one. We do not think it is appropriate to cover that by Clause 78. As the noble Baroness knows, the presumptions in Clause 78 relate only to the defendant's belief in consent. Even when the presumptions apply, as the noble Baroness knows, the complainant's lack of consent, as opposed to belief in consent, will have to be proved in the normal way. This will almost certainly involve cross-examination of the complainant. Very little is gained by what the noble Baroness is proposing. I entirely accept the circumstances that she posited, but is it sensible, in such a rare case—we cannot amend to cover a Clauses 33 to 37 offence—that would not normally, as the noble Baroness will acknowledge, involve cross-examination of a complainant. As we have said on previous occasions, they normally deal with medical evidence, which is the normal material that would be used under Clauses 33 to 37.

I understand the motive behind the amendment and understand why it has been tabled, but I do not think that it is necessary or appropriate or would provide much help. I hope that the noble Baroness will give that point some consideration when she is deciding what to do about the amendment.

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10 p.m.

Lord Lucas: I had hoped that the noble and learned Lord would reply to my question too.

Lord Falconer of Thoroton: I am sorry. I can easily imagine circumstances in which a physical incapacity would make it impossible or difficult for the victim to indicate that he or she did not consent. It might be that if the defendant knew the victim, he would know that he or she was not consenting. I can easily imagine circumstances in which the position of the victim was such that transmitting a lack of consent would, through physical incapacity—for example, unconsciousness or a medical condition that made any sort of communication impossible—be very difficult. It is wrong to rule that out.

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