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Lord Williams of Mostyn: My Lords, we have discussed this matter at some length today. I make no criticism of that because this is an important matter. We have also discussed it at significant length on earlier occasions. Perhaps I may focus for a moment on the terms of the amendment. The noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford, seek to introduce, at page 24, line 29, the entitlement of a judge to give leave for personal cross-examination in rape cases. The criterion that the judge must apply in coming to his judgment is whether he is satisfied that it would be unfair to the defendant not to allow it. There is no reference there to any of the issues which have been spoken of about the anguish caused to genuine complainants.
Several propositions have been put forward which are either inaccurate or unreasonably based. On the last occasion but one the Lord Chief Justice put forward his proposition that one had to prevent miscarriages of justice at all costs. I venture to disagree with that. I give the well known example that in some jurisdictions one cannot achieve a conviction for rape without the evidence of two male witnesses. If one wants to go along the route of "at all costs"--I believe it to be unduly absolutist--one can do so, but I decline to start on that journey. The noble Lord, Lord Thomas of Gresford, said that these were safeguards produced over many centuries. No, my Lords, it was only 100 years ago that a defendant could give evidence in a criminal trial on his own behalf. Over the centuries most defendants were not represented, let alone at public expense.
My noble friend Lady Mallalieu said that we should be cautious, indeed very careful, about interfering with the right to challenge and explore accusations. It is specifically preserved in the Bill. Provision is made for representation at public expense. Provision is made for the judge to consider warning the jury that the mere fact that an otherwise self-represented defendant was not able to cross-examine a complainant does not derogate from his case or the value of the cross-examination. There is no question of stopping the challenge and exploration of evidence given by the complainant.
My noble friend Lord Richard asked how it could conceivably be right to prevent a defendant cross-examining on his own behalf if he wished. I can deal with that. He also raised the related point of what happens if the lawyer is not available. The position would be exactly the same as occurs now if the lawyer is not available. The judge dealing judicially with the matter will allow an adjournment; and he will allow a proper adjournment because, if he does not do so and insists on an unrepresented defendant continuing, he will find that the conviction will be overturned (rightly) in the Court of Appeal (Criminal Division).
I turn to the fundamental point raised by my noble friend Lord Richard. In our system of criminal justice, how can it be right to stop a man cross-examining in person if he wishes? I can give the answer immediately. That has been the position in our system of criminal jurisprudence for some years past now. If one is charged with the incestuous rape of one's daughter, or any other sexual offence against one's daughter, one is not allowed to cross-examine her in person.
Let me take that example further forward. We have heard the examples given: that a kind, gentle cross-examination may effectively sometimes bring about the immediate withdrawal of the allegations. That is not the scheme we have with children. I have not heard it contended myself, nor seen any evidence of it, that that has brought about a miscarriage of justice. So sometimes--I put it gently--absolutist propositions of a golden time, or on how things were in principle, simply do not bear even cursory examination.
We must recognise--there is abundant material to bring us to that recognition--that many women who are complainants in rape cases will not submit themselves to the further ordeal of the court process. Frequently a woman officer detailed to deal with them has to tell the complainant that there is a prospect of cross-examination in person. If the complainant asks the CPS representative, he or she has to say that there is that prospect. The complainant might say to the woman officer trained in investigation of rape, "But when?". If by some mischance your Lordships support the amendment the answer would be, "If the judge thinks it is unfair to the defendant not to be at liberty to do so". I cannot imagine many women wanting to continue with their complaint on that basis.
There is no suggestion in the Bill that competent cross-examination can be disqualified. There are safeguards to which I have referred. If the Milton Brown and Ralston Edwards cases were never to occur again, there would still be that significant fear that women would be subjected to a cruel and degrading experience which is forbidden by the European convention.
I do not wish to join unnecessarily in the general debate between the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Lester of Herne Hill. But occasionally your Lordships--not myself, I think--are guilty of quotation of previous excerpts from Hansard. I refer to col. 1400 of the Official Report of 1st February 1999. The nobel and learned Lord, Lord Ackner, I agree, did not say "guru". There was reference to "in-house expert" which may or may not be offensive! I take no part in that, except to be deeply helpful! The Lord Chief Justice said:
I have thought carefully about everything that has been said, and have reread all the debates. There will not be a compromise on principled view. On behalf of the Government I do not accept the amendment. I do not say that discourteously. I simply put my position perfectly plainly. I recognise that when professional colleagues whom I have known over the years come to a view, it has to be taken seriously. The noble Lord, Lord Thomas of Gresford, and I in past times have both prosecuted and defended in rape cases. That does not make us necessarily experts in the conclusions to which we come, plainly because we come to different ones. But the arguments that were deployed by a number of my colleagues and judges whom I respect have to be attended to. I believe that they have got it wrong. I do not say that on the basis of absolute certainty but after weighing up the arguments.
If a man is accused of rape, as the noble Lord, Lord Cope of Berkeley, said, not all complaints are genuine; and as the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Ackner, said on earlier occasions, the penalties for rape are extremely serious. We say that in these circumstances, which we believe to be genuinely analogous to the prohibition presently in our law, the defendant will have representation; he will have it at public expense; and the judge has duties to give specific warnings to juries. If a defendant says, "I wish to conduct the whole of my trial myself", the scheme is flexible enough to enable one to say, "You may conduct the whole of the trial yourself, except when the woman complainant"--I use the word
I cannot assist your Lordships further. I respectfully dissent from what is being said by those whose opinions I respect. I believe that we have reached the correct conclusion. I do not believe that it has led to miscarriages of justice in children's cases. I believe that the noble Lord, Lord Goodhart, the noble Viscount, Lord Brentford, and others are right when they say that rape is a crime which is in a category different from other grievous crimes. I shall not be able to say to a woman complainant, if she asks me, "Well, you can rely on the guidelines in Brown and Edwards.", because I do not believe it.
Lord Ackner: My Lords, we have had a long debate which in many ways has covered the points. Therefore, I shall be brief. The noble Earl, Lord Russell, asked me how on earth it could be unfair to deprive a defendant of the right to cross-examine in person. I find no difficulty in that. If one is dealing with an alleged rape case where for years the parties have lived together as man and wife, as partners or whatever, and the allegation is untrue, the defendant in person is in a far better position to be able to catch the complainant out in the answers she gives because of the way he can remind her of other events which corroborate his point. The dishonest answers to his questions can be quickly followed by further questions which, in the end, may either establish to the jury's satisfaction that it is an untrue bill or cause her, as the noble Baroness indicated in one case, to say, "You are quite right, I have made this up. We had a row and I am trying to get even with you.".
The noble Lord, Lord Goodhart, was good enough to admit that his practice does not involve dealing with crime. He says that he cannot conceive that the result of this embargo on cross-examination could possibly lead to an innocent person being convicted. Putting it briefly, the noble and learned Lord the Lord Chief Justice said that one of the results could be that innocent people are convicted and guilty people are acquitted. That is in Hansard; it was his view.
It is very easy to see how the guilty person can be convicted because no judge can stop the defendant in his final speech indicating how unfairly he has been treated by his inability to cross-examine, although every other stage of the defence was conducted by him personally. It is very easy to make out a situation of unfairness, the little man being faced by the heavier personalities of the prosecution.
I do not know who accepted that under the Bill as now drafted the situation is evenly balanced. I certainly did not. It is unevenly balanced. It was evenly balanced when the defendant had the right to cross-examine personally or leave it to a professional to do so.
I conclude by referring to briefing material sent to me by Women Against Rape to deal with the debate which began when the noble Baroness, Lady Byford, drew attention to a Home Office report on the subject. It reads: