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Lord Thomas of Gresford: Before the Minister leaves that point, can he tell us, from all his years of practice, and so on, whether he knows or has heard of a case where the defence is, "I didn't believe she consented, but she did actually consent"? I cannot think of that situation ever conceivably arising. Unless it does arise, it seems to me that the provisions of subsection (3)(b) are otiose because a defendant can always say, "I reasonably believed that she consented". Therefore, under subsection (3)(a) he is entitled, if it is relevant and the judge gives leave, to go into the claimant's sexual history.
Lord Williams of Mostyn: I do not believe that subsection (3)(a) entitles an accused to go into the claimant's sexual history. If in fact his defence is, "I reasonably believed", then he has the protection which is given him, subject of course to the parliamentary structure--and I emphasise "subject to the parliamentary structure"--which is incorporated in the Bill. Indeed, we return to the point of principle of the noble Lord, Lord Cope, of whether it is to be left to a discretion which many believe has been inappropriately exercised--and I put that with due deference to the judiciary--or is it to be the subject of a parliamentary structure. That principle, as identified by the noble Lord, really puts most of the submissions and arguments that have been made, which I stress are all well-meaning and honestly held, into that context.
A particular question was raised as regards what the consequences of the legislation had been, subsequent to the report of Dame Rose Heilbron. A good deal of the evidence which the noble Lord identified--and I shall not weary Members of the Committee by repeating it--indicates that applications were made and granted beyond the scope of what Dame Heilbron anticipated. It is true that the Bar has rules, but they do not actually attend to this mischief. It is also true that the Court of Appeal may issue guidelines but, on the understanding that we have, they do not necessarily govern what judges actually do. We should bear in mind the fact that if the judge allows in material "wrongly and inappropriately" and there is an acquittal, there is no review in the Court of Appeal Criminal Division of what has happened; nor any prospect of challenging the judge's determination on admissibility.
My noble friend Lady Mallalieu further questioned why things are different in Scotland. As the noble Lord, Lord Lester, indicated, we considered carefully the legislation in Canada, New South Wales and Scotland. As I understand it, the wording of the Scottish legislation places little emphasis on relevance or probity value. The Scottish Office research in 1992 considered that the width of the interests of justice gateway meant that sexual behaviour evidence was admitted much more often than had been intended. Some practitioners who were questioned said that the inclusion of a gateway
Lord Lester of Herne Hill: Before the Minister leaves the subject of research and professional standards, is he aware of Professor Temkin's in-depth study involving interviews with a small sample of senior criminal practitioners at the Bar? Her interviews with experienced advocates who had appeared both for the defence and for the accused indicated that--the study comprised male and female barristers, including male barristers "of a certain age"--
Lord Williams of Mostyn: One knows of a number of mischiefs that follow from that. First of all, often material is not deployed to the issues which matter; namely, did intercourse occur, was there consent, was there a belief in consent? The material is really used--I think I detected an echo of this earlier this evening--to attack credibility. I submit that the true analysis of a woman who says, "I was raped" should not allow the fact that she has consented with her own body to sexual intercourse with another person on a different occasion. As regards credibility, I do not think it is legitimate to use that information.
The noble Lord, Lord Thomas, intervened when the noble Baroness, Lady Ludford, made a point about previous convictions. However, witnesses can be cross-examined about previous convictions if they affect credibility; in other words, if they are convictions of dishonesty. As far as I am aware, having voluntary sexual intercourse with someone on an earlier occasion does not necessarily involve any allegation of dishonesty, at least not on behalf of the consenting woman, although she may have been coaxed into it by something rather less than honest on the part of her then sexual partner.
These matters are extremely difficult. I do not think anyone who has been involved in a rape case as an advocate, a practitioner or a judge feels anything other than deep unease. That may be due to the nature of the charge and the nature of the evidence. However, we have come to the conclusion that we need to establish a parliamentary structure in this regard. I believe that we have it right. I do not dismiss any proposition put forward this evening. I give the undertaking that we shall consider the matter most carefully. However, I cannot give any guarantee that we shall reach a different conclusion.
I understand that the noble Baroness and the noble and learned Lord the Lord Chief Justice may say that they intend the measure to provide a wide discretion. I revert to the point at which we began. A large number of complainants will either not complain or, having complained, will not go to court if they know--they have to be told about this by the police officer or the CPS if they ask this question--that they will be asked about the whole of their past sexual history. That is not relevant to any issue and will do nothing apart from demean someone not as a witness of truth and honesty but just because that person has exercised sexual choices in her own way. As I read the amendment, it is an extremely wide provision. I could, of course, be wrong in my construction of it.
I hope that I have dealt with the main themes here. I do not apologise for repeating the fact that I think the noble Lord, Lord Cope, identified the position correctly. Is this to be a matter for the courts' discretion or for parliamentary structure? We think that this is a matter for parliamentary structure on the face of the Bill. I recognise that other people may honourably disagree with that. I undertake yet again to think carefully about what has been proposed. However, I do not think that we shall deviate from the principled approach that we have adopted, even if the Committee thinks that that principle is ill-founded.
Lord Ackner: I shall be brief. The Minister has said that this is a difficult matter. It has also been said that the courts have not given the kind of guidance that would be helpful. In my respectful submission, they have. In the case of Viola in 1983 the Lord Chief Justice said,
I respectfully submit that the Minister is not quite right when he says that if the judge gives too favourable an approach and it results in an acquittal, nothing can be done. I do not think the Home Secretary's reference procedure has been abolished. The Home Secretary could go to the Court of Appeal and invite a ruling as to whether in principle the approach by a learned judge was right or wrong.
Obviously I would not seek to put my amendment to the vote at this stage, but I--and others, no doubt--will be concerned about focusing on the right answer so that it can be dealt with on Report. I beg leave to withdraw my amendment.