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Baroness Mallalieu: My Lords, I agree with every word just spoken by the noble and learned Lord. I am always troubled when I hear it said that a balance must be struck. It indicates that an important matter of principle is about to be ditched. There is at present, quite rightly, a serious stigma attached to the offence of rape. The provisions suggested by several sides of the House reflect the pressure groups to which the noble and learned Lord referred. I am bound to say that my experience is very much akin to that of the noble Baroness, Lady Carnegy, when I talk to people about the sort of cases in which, as a criminal barrister concerned with rape, I am involved. Much as I admire her eloquence, the way in which the matter was put by the noble Baroness, Lady Kennedy, does not reflect the general view.

I am also troubled by the proposed law of unintended consequences. The stigma that currently attaches to rape is rightly attached to a situation where one person forces himself on another against the will of the other and without concern for his or her objections. The stigma is not attached to carelessness, inadvertence, mistake or negligence. I pay tribute to the Minister for his response to those of us who raised concerns at an early stage. I recognise that the noble and learned Lord has moved a considerable distance. But, ironically, the proposed change might well be to downgrade the seriousness of the crime, which I do not believe to be the intention of the Government. Nor is it what some of those in favour of change wish to see. I shall support later amendments proposed by the noble and learned Lord, Lord Lloyd.

4.45 p.m.

Lord Campbell of Alloway: My Lords, I agree with the noble Baroness, Lady Mallalieu. I agree also with the comments made by the noble and learned Lord, Lord Lloyd of Berwick, on, effectively, Amendments Nos. 4 and 5—though he actually spoke to subsection (3) as regards the latter amendment—to which he has attached his name.

The grouping begins with Amendment No. 2 moved by the noble Lord, Lord Thomas of Gresford. I am in difficulties with the amendment because it includes the word "mouth". I have tabled a later amendment that proposes to exclude the reference to "mouth". I do not wish to anticipate the debate, or to take up the time of the House by repeating myself when I move that amendment, but, basically, that is the reason behind my objection to the noble Lord's amendment. I shall greatly regret it if we are to have the "reasonable" defence, but not "guilty intent". It is wrong to remove

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"guilty intent" from the offence of rape. However, if the House proposes to go that way, then I am with the noble Lord, Lord Thomas of Gresford, on paragraph (c) of his amendment, because noble Lords would accept "reasonably believe".

I am also very much with the noble Lord on the violation of the presumption of innocence. I am, therefore, in a split position, which I thought I should declare to the House in the presence of the noble Lord. I do not wish to detain noble Lords. I shall deal in due course with my amendment, which proposes to delete the reference to "mouth". The issue may well have been spoken to by the time that Amendments Nos. 4 and 5 are called. I simply do not know.

The wording of government Amendment No. 6 is repeated throughout this grouping as regards Clauses 1, 3, 5, and 7, which is the run to which I referred earlier. When moving Amendment No. 1, I said that I would be opposed to that change. However, if the House is to take another route, I should still find this unacceptable in rape because it would substitute an artificial, abstract standard of "reasonableness" for guilty intent. For my part, I cannot get away from that position. Having made the point, I should add that I am grateful for having had the opportunity to make myself plain.

Lord Ackner: My Lords, I agree entirely with my noble and learned friend Lord Lloyd of Berwick. That is not surprising, because I am bracketed with him in regard to Amendments Nos. 4 and 5. I do not know whether I misheard what was said on the rate of conviction—this happens from time to time nowadays—but I understood from the most informative speech made by the noble and learned Lord, Lord Cooke of Thorndon, that since New Zealand amended its legislation to introduce the objective test the conviction rate stands at 35 per cent. Have I got that wrong?

Lord Cooke of Thorndon: My Lords, that is substantially correct, but it must be remembered that the number of convictions for rape has dramatically increased. However, the rate of convictions as against complaints—complaints have also increased—is about 35 per cent.

Lord Ackner: My Lords, I am very grateful. That is appreciably below what we have at present, without any amendments. I thought it might be worth reminding the House of that.

Lord Falconer of Thoroton: My Lords, three issues are raised by this group of amendments. The first is the objectiveness test, again. All the amendments in the group have some formulation in relation to an objective test. The second issue is what that objective test should be. The third is the presumptions issue: have we gone too far in placing too many burdens on the defendant? That is the point raised by the noble Lord, Lord Thomas of Gresford.

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With regard to the objectiveness test, the noble and learned Lord, Lord Lloyd of Berwick, made a very powerful speech which in effect supported the point made by the noble Lord, Lord Campbell of Alloway. It completely ignored the speech by the noble and learned Lord, Lord Cooke of Thorndon; it was delivered as if the hypothesis had never been tested in practice. The noble and learned Lord, Lord Cooke, who was the President of the Court of Appeal in New Zealand from the time such a test was introduced, said that it was part of a number of measures that were introduced, and also said candidly that it was not possible to tell precisely which effect which measure had had. But his broad thrust was that it worked and worked well, and, along with the other measures, increased the number of cases brought to trial.

From all round the House there was support for the introduction of an objective element, to the extent that the noble Lord, Lord Campbell of Alloway, said that the sense of the House was that it wanted to have an objective element, for the reasons given by the noble Lord, Lord Thomas of Gresford, by the noble Baroness, Lady Noakes, and by my noble friend Lady Kennedy of the Shaws. We strongly take the view that the time has come for there to be that objective element, because I ask the House to remember that the victim has been raped, has been forced to have sexual activity without her consent. The issue is whether or not the defendant honestly and reasonably believed that she consented. There is no question in these cases over there not having been consent, because only after that has been established does the issue arise. Therefore, with the greatest respect to the powerful speech delivered by the noble and learned Lord, I rely on the arguments advanced not just by me but by other noble Lords in the first part of the debate.

The second issue is how to formulate the reasonableness test. The Bill is as it is. The amendments of the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Walmsley, would strike out the existing test of mens rea from subsections (2) and (3) and replace it with a requirement that the defendant does not reasonably believe that the complainant consents. Those of us who are following the debate by reference to the documents will note that in Amendment No. 175, to Clause 77, they then have a seven-line explanation of what is meant by absence of belief in consent. I suggest that noble Lords look at that to see the precise nature of the reasonableness test proposed as being simpler than ours.

We believe that considerable and effective points were made about our test in subsection (3), and in response to the criticisms levelled against the way in which our own reasonableness test was framed, we propose our own amendments to Clauses 1, 3, 5 and 7 to introduce a new, simpler version of the reasonableness test, one that we believe effectively addresses the concerns that have been raised, while still meeting our policy objectives of focusing on the actions taken by the defendant.

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I appreciate that the noble Lord, Lord Thomas of Gresford, and I both assert that our test is the simpler, but in some respects the noble Lord's test loses some key elements. The test that the Government propose in Amendment No. 6 and the amendments dependent upon it focuses upon whether the defendant should have doubted that there was consent. The test directs the jury to look at all the circumstances in considering this issue, including whether the defendant took any steps to ascertain consent. These are utterly straightforward issues that the noble Lord would be the first to agree the jury would have no difficulty in understanding.

The jury's consideration will also take account, where necessary, and subject to any directions of the judge, of any relevant characteristics of the defendant. But the really important matter is that our test will be easier for the jury to apply than the negative formulation—

Lord Campbell of Alloway: My Lords, will the noble and learned Lord deal with what I think could be the crunch issue: the burden of proof? There is a sticking point.

Lord Falconer of Thoroton: My Lords, I shall certainly come to the question of the burden of proof, but I shall first deal with how one formulates the reasonableness test.

The reasonableness test of the noble Lord, Lord Thomas of Gresford, is a negative formulation: does the defendant not reasonably believe? It is far simpler for the jury to be asked to consider positive facts—should the defendant have had doubts about consent in all the circumstances?—rather than being asked to decide whether the defendant should not have believed in consent.

Amendment No. 175 of the noble Lord and the noble Baroness, Lady Walmsley, would retain the focus of the reasonableness test on the steps that the defendant took, but this issue needs to be clearly spelt out in the relevant non-consensual clauses. In any event, that amendment does not detract from the problems of the negative formulation that the noble Lord proposes, the "does not reasonably believe" test, which I have already outlined.

The amendments of the noble Baroness, Lady Noakes, and the noble Lord, Lord Astor of Hever, Amendments Nos. 7, 8, 19, 20, 29, 30, 38 and 39, are all designed to require the jury to take into account the personal characteristics of the defendant when applying the reasonableness test. Those are amendments to our old subsection (3), which, whether we take my test or the test of the noble Lord, Lord Thomas of Gresford, would not survive.

However, I should deal with the point that is raised in the amendments. Introducing a requirement that all the personal characteristics of the defendant should be taken into account would mean that the jury would be asked to take into account characteristics that should not absolve him of guilt: for example, the fact that he

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has a quick temper or that the sight of a girl in a miniskirt will always turn him on and make him unable to resist her. That cannot be the intention.

I have indicated that the judge and the jury together can be relied on to identify those characteristics which could be taken into account, and I stand by that. That applies just as much to government Amendment No. 6, and it would apply equally to the amendment of the noble Lord, Lord Thomas of Gresford. He can express his own view about that.

As I explained in Committee, it is for the jury to decide whether any of the defendant's attributes are relevant to their deliberations, subject to the judge's directions where necessary.

I have dealt with Amendment No. 175. It retains the effect of the provisions in subsection (2) of Clauses 1, 3, 5 and 7, but is much more complicated. Subsection (2) of each clause contains a "does not believe" test. As I have already explained, since this negative formulation is difficult to understand, we have given examples in brackets of what it covers. One example is where the defendant gives no thought to whether the complainant consents. The noble Lord achieves the same end, but by means of a presumption. We consider that that is unnecessarily complicated. It is obvious that a person who gave no thought to the question of consent cannot have believed in consent. It is worth mentioning but it is not worth creating a presumption about it. It is more helpful for this explanation to be in the relevant clauses than in Clause 77.

We favour our approach rather than that of the noble Lord, Lord Thomas of Gresford. We bear in mind the points made by the noble Baroness, Lady Noakes. All three proposals—ours, the noble Baroness's and the noble Lord's—seek to arrive at broadly the same point. The right course is for the Government to consider all three amendments, to talk to parliamentary counsel and to come back at Third Reading with a formulation to deliver the result that I anticipate we all want to achieve. The issues between us are not about achieving a particular end but about the best way of formulating that end. That is all I want to say in relation to the reasonableness test.

The rebuttable and conclusive presumptions raise different issues, with which the noble Lord, Lord Thomas of Gresford, has quite rightly dealt.

5 p.m.

Lord Lloyd of Berwick: My Lords, before the noble and learned Lord leaves the reasonableness test, is he saying that a person could be charged in the same count with the alternatives of the objective and subjective offence? If not, would it not be better to have the objective and subjective offences in separate sections with different penalties, otherwise we are bound to get into trouble?

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