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Lord Lucas: That reaches the fringes of possibility. Unconsciousness or anything approaching it is covered by paragraph (d). I have never seen a physical disability that resulted in a total inability to communicate, unless it is, at the same time, a mental disability or unconsciousness.

Baroness Howarth of Breckland: I declare an interest as the vice-chair of the John Grooms association for disabled people. I could describe a wide range of physical disabilities in which people have quadriplegic disorders or communication or verbal disorders. It may mean that they are not intellectually impaired, but they are certainly physically impaired and would find communication—immediate communication, certainly—difficult. Sometimes, they take time to communicate, and, in those circumstances, that would cause considerable difficulties.

Baroness Blatch: Does it not also hinge on what constitutes consent? A case was brought to my attention not too long ago in which a person who was paralysed from the waist down was driving home in a modified car and stopped in a lay-by for a rest. A person came up intending, she thought, to assault her sexually. She simply said, "I'm paralysed and can do nothing, so have your way with me". It was not consent in the real sense of the word, but she knew that she was completely helpless. It so happened that God was on her side that night, and the other person was so shocked by what had happened that he moved away and did not continue his advances.

There is an issue about what is consent. In that case, it was not consent; it was someone saying, "I can do nothing about it, so you might as well get on with it".

Lord Falconer of Thoroton: I am very grateful. Noble Lords have given better answers than I gave. The noble Baroness, Lady Howarth of Breckland, gave a sensible answer.

I may not have understood the facts fully, but, in the example given by the noble Baroness, Lady Blatch, the victim, in fact, made it absolutely clear that she did not consent. In effect, she said, "I don't consent, but there

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is nothing that I can do about it". That would not be caught by the subsection because she was able to indicate her view clearly.

Baroness Noakes: I thank all noble Lords who took part in this short debate. There are interesting issues relating to physical and mental disability to be debated.

I shall consider carefully what the noble and learned Lord said about the way in which a mental disability would fit into the presumptions as to belief in consent, set out in Clause 78. I am not convinced that it deals with the point. There may be an issue about the effect of mental disability in circumstances that are, perhaps, not that rare. I quoted autism, but there are other forms of mental disability that do not necessarily present themselves as showing that, at a particular point in time, a person did not have the capacity to consent. I shall consider the matter again, and I thank the Minister for his response. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 394:


    Page 35, line 38, leave out "when" and insert "immediately before"

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 395:


    Page 35, line 40, leave out "when" and insert "immediately before"

On Question, amendment agreed to.

[Amendments Nos. 396 and 397 not moved.]

Lord Campbell of Alloway moved Amendment No. 397A:


    Leave out Clause 78 and insert the following new Clause—


"DEFENCE OF HONEST BELIEF AS TO CONSENT
The provisions of this Act as concerns England and Wales shall not abrogate the jurisdiction of the judiciary to entertain the defence of honest but mistaken belief as to consent as judicially established, and to ensure that an accused who had no guilty mind should not be convicted."

The noble Lord said: If this amendment were to commend itself to the Committee it would slight the mould not only of Clause 78, but of Clauses 1, 3, 5 and 7. There was no comprehensive debate on day one on Clause ll(3), as implemented by Clause 78, which lie in irreconcilable conflict with this amendment which inserts retention of the defence of honest belief in consent.

As yet it would not appear that Members of the Committee, who have given notice to move that Clause 78 does not stand part, have made common cause on retention of this defence supported by this amendment. But on this occasion, at this hour, on a matter of this importance, there is no prospect of deploying any reasoned argument of persuasion which could even persuade my own Front Bench.

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The purpose today is to engender debate on which the opinion of the House shall not be taken until Report if leave for that purpose to withdraw this amendment were granted. I have said that I would take three minutes to open this matter so may I take one more? The salient questions arising are, first, why was this defence judicially established; how does it work in practice and why should it be abolished? Secondly, what are the intended consequences of abolition and are they acceptable? The third question is whether, by weighting the scales of justice to inhibit the prospects of acquittal, the unintended consequence of the collateral damage shall be the inevitable enhancement of the risks of erroneous conviction. Those are the three salient questions for consideration by the Committee.

It is no intended discourtesy to your Lordships in the Chamber to suggest that due examination of this question cannot truly be afforded at this hour today. Such debate should ensue on Report when the merits of the argument may be addressed objectively by the House. I beg to move.

Lord Falconer of Thoroton: We have already had a debate on the reasonableness defence. The noble Lord gives due warning that the issue is coming back on Report, but I do not think that anything would be served by our debating it again.

Lord Campbell of Alloway: I am grateful to the noble and learned Lord. We have not, with respect, had a comprehensive debate. The beginning and the end have been separated by a period of six Committee days. What we shall have on Report, if your Lordships give me leave, is a comprehensive debate on which an objective examination may be made. We have not yet had that debate—whatever the noble and learned Lord may say, we have not had it. Let us have it on Report.

Baroness Blatch: Before my noble friend sits down, I would like to ask a procedural question. If the Committee has dealt with the question of whether Clause 78 should stand part of the Bill, why was this amendment not pre-empted?

Lord Campbell of Alloway: If that question is addressed to me, I do not think that I can query—whatever may be the instructions from the Christian Institute on this affair and whatever other instructions may be given—the decision of the Table that the amendment is proper. I am greatly distressed that my noble friend, who is deputy leader of my party, should take such exception to the amendment.

Baroness Blatch: I am deeply distressed that my noble friend should ascribe my question to the Christian Institute—it was a genuine, procedural question. I was neither against my noble friend nor for him. In fact, I have taken no part in the debate on Clause 78. I asked the question simply because the procedure seemed odd. If Clause 78 has been

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considered by the Committee and deemed to stand part of the Bill, I thought that, procedurally, the amendment might have been pre-empted. It was an entirely innocent, procedural question on my part.

Lord Campbell of Alloway: May I ask, as that response has been made, why the objection was made by the deputy leader of my own party, and not by the Government?

Baroness Blatch: It was not an objection. It as an entirely innocent, procedural question.

Baroness Noakes: Perhaps I may help both of my noble friends. I heard it not as an objection but as a query. The Committee debated Clause 78 stand part, but the Question was not put when we did so, which was on our first Committee day. It is therefore perfectly proper to debate Amendment No. 397A where we find it.

Lord Campbell of Alloway: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 398:


    Divide Clause 78 into two clauses, the first (Presumptions about the absence of belief in consent) to consist of subsections (1) to (4) and the second (Conclusive presumptions about consent) to consist of subsections (5) to (8).

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clause 79 [Section 78: relevant acts]:

Lord Falconer of Thoroton moved Amendment No. 399:


    Page 36, line 27, leave out "section 78 applies, references in that section" and insert "sections (Presumptions about the absence of belief in consent) and (Conclusive presumptions about consent) apply, references in those sections"

On Question, amendment agreed to.

On Question, Whether Clause 79, as amended, shall stand part of the Bill?

Lord Skelmersdale: I know that we have already debated the issue, but I omitted to ask a question earlier that I should have done, for which I apologise to the Committee. The second offence is that under Section 3—assault by penetration. Does the Interpretation Act apply to the relevant acts, which can be committed by women as well as men?


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