Sexual Offences Bill [Lords]

Public Bill Committee, 9 September 2003.

First SittingTuesday 9 September 2003

Sexual Offences Bill [Lords]

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move,

That—

(1) during proceedings on the Sexual Offences Bill [Lords] the Standing Committee shall, in addition to its first meeting on Tuesday 9th September at 9.10 a.m., meet—

(a) on that day at 2.30 p.m.;

(b) on Thursday 11th September at 9.10 a.m. and 2.30 p.m.;

(c) on Tuesday 16th September at 9.10 a.m. and 2.30 p.m.;

(d) on Thursday 18th September at 9.10 a.m. and 2.30 p.m.;

(e) on Tuesday 14th October at 10.30 a.m. and 4.30 p.m.; and

(10) the proceedings shall be taken in the order shown in the first column of the following Table, and shall (so far as not previously concluded) be brought to a conclusion at the time specified in the second column of the Table.

TABLE Proceedings Time for conclusion of proceedings Clauses 1, 3 to 5, 76 to 78, 2 6.55 p.m. on Tuesday 9th September Clauses 6 to 16, 74, 17 to 31, 65, 66, 32 to 46 6.55 p.m. on Tuesday 16th September Clauses 47 to 57, Schedule 1, Clauses 58 to 64, 67 to 73, Schedule 2, Clauses 75, 79 and 80 5.15 p.m. on Thursday 18th September Clause 81, Schedule 3, Clauses 82 to 102, Schedule 4, Clauses 103 to 136, Schedule 5, Clause 137, Schedule 6, Clauses 138 to 140, new Clauses, new Schedules and any remaining proceedings on the Bill 7 p.m. on Tuesday 14th October Proceedings Time for conclusion of proceedings Clauses 1, 3 to 5, 76 to 78, 2 6.55 p.m. on Tuesday 9th September Clauses 6 to 16, 74, 17 to 31, 65, 66, 32 to 46 6.55 p.m. on Tuesday 16th September Clauses 47 to 57, Schedule 1, Clauses 58 to 64, 67 to 73, Schedule 2, Clauses 75, 79 and 80 5.15 p.m. on Thursday 18th September Clause 81, Schedule 3, Clauses 82 to 102, Schedule 4, Clauses 103 to 136, Schedule 5, Clause 137, Schedule 6, Clauses 138 to 140, new Clauses, new Schedules and any remaining proceedings on the Bill 7 p.m. on Tuesday 14th October

Win Griffiths (Labour, Bridgend)

I remind members of the Committee that the debate on the programme motion can continue for up to 30 minutes.

Dominic Grieve (Conservative, Beaconsfield)

I welcome you to the Chair, Mr. Griffiths, and the Minister to the Committee. As the Under-Secretary knows, the Opposition's approach will be one of co-operation. We shall try to ensure that this important legislation goes on to the statute book in good condition. It is clear that many aspects of the Bill are common ground between all political parties, even though there may be some anxiety about its details, which we shall consider during our discussions in Committee.

As the Under-Secretary knows, Opposition parties do not much care for programme motions on the whole. However, I am reassured by his words about the flexibility that will be built into the system. We shall endeavour to ensure that we reach the end of the Bill knowing that every part of it has been scrutinised properly. I am sure that, with the Ministers' co-operation, we will achieve that aim. We are undertaking important work and I look forward to co-operating with all members of the Committee to that end.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I echo the welcome to you, Mr. Griffiths.

I too welcome the spirit of co-operation. It was almost a joy to participate in the debate on Second Reading. For the first time, I felt that hon. Members on both sides of the House were searching for the right answers for our society. With that in mind, we will play a positive role in scrutiny of the Bill. We will want to make sure that we debate those issues about which we are concerned, and that we find the right words to solve some of the problems that worry us all in view of the difficulty of striking the right balance in the Bill between protection and criminalisation. We look forward to playing a full part in the proceedings and serving under your chairmanship, Mr. Griffiths.

Humfrey Malins (Conservative, Woking)

I, too, welcome you to the Chair, Mr. Griffiths.

Tribute should also be paid to the constructive approach taken to the Bill in their lordship's House by both Government and Opposition Benches. I pay particular tribute to my noble Friend Baroness Noakes. The Bill was better when it left the House of Lords than when it started there. I join my hon. Friend the Member for Beaconsfield (Mr. Grieve) in saying that we shall approach the Bill constructively.

Question put and agreed to.

Win Griffiths (Labour, Bridgend)

I remind hon. Members that they must give adequate notice of amendments. I do not, as

a general rule, intend to call starred amendments, including any that may be reached during an afternoon sitting. I also remind hon. Members to switch off their mobile phones.

Clause 1 - Rape

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 35, in

clause 1, page 1, line 6, after 'vagina', insert 'or'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 34, in

clause 1, page 1, line 6, leave out 'or mouth'.

Dominic Grieve (Conservative, Beaconsfield)

The clause is arguably the most important in the Bill and would, when taken together with clauses 76 and 77, rewrite the law on rape in various ways, including in respect of the tests that should be applied when deciding whether somebody is guilty of rape.

I begin by considering what is rape—indeed, we must start with that when considering subsection (1). I do not wish to enter into detailed discussion at this stage, but I need some reassurance from the Government on their approach to the provision. My amendments, which are linked, would remove the word ''mouth''. A feature of the proposed legislation is that the definition of rape is being widened to include penetration of the mouth by the penis. We must pause for a moment before simply rubber-stamping that measure and consider whether we are doing the right thing. Having said that to the Minister, however, I do not intend to force the amendment to a vote.

The definition of rape has changed considerably in recent years. In the past, rape was vaginal penetration—and that was that. Then Parliament decided to get rid of the offence of buggery and replace that expression with rape. We barristers were a little bit surprised when Parliament did that: my experience of cases of that kind is that juries and individuals differentiated clearly between those two offences, both in the terminology they used to describe what happened and—this is the key point—how they viewed the gravity of such offences. That is ancient history and I do not wish to re-open the matter. However, it has now been decided that it is right to extend the definition of rape further to include penetration of the mouth.

My concern is practical and relates to sentencing. I have read some of the guidelines on rape cases. It is quite apparent already that, despite the merging of rape and buggery into one offence, the approach of the courts is likely to be substantially different, depending on which offence they are dealing with. I suspect that that the same will happen after we extend the definition of rape to include penetration of the mouth. I am interested to hear the views of Committee members on the following question: are we being sensible about this, or ought there to be a separate offence? I have not tried to draft a separate offence during this Committee, although that would be easy. Perhaps we should think about doing that, rather

than just trying to roll everything into one generic description.

Stephen Hesford (Labour, Wirral West)

Is the hon. Gentleman not answering his own question? I strongly suggest that we do not revisit the old offences. Is not Parliament trying to give a message to the courts that whatever form of unlawful sexual activity takes place, it considers the gravity to be the same so there should be a similarity of sentencing? If a court wants to take a different view of the facts of any individual case, that is for the court to decide. We as a Parliament should send out the message that the courts should be under no illusion that we do not consider all these acts to have similar gravity.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman raises an interesting point. That may be Parliament's intention, but I have already seen some of the discussion papers that have been produced about sentencing and my impression—the Minister may be able to enlighten us further—is that, far from the judiciary treating the offences generically and as having similar gravity, guidelines will emerge suggesting that, on the contrary, certain types of penetration are more serious and should be viewed more seriously than others.

Clearly, one merit of the Bill as drafted is that adding a maximum sentence of imprisonment for life provides maximum flexibility. I do not necessarily suggest that a separate offence of penetration of the mouth should have a different sentence—although one could look at that. However, the Committee should understand that blanket statements are being made about offences of penetration being classified as equally vile and reprehensible, which of course they are, and about them having equivalent consequences. I do not believe that that is what will happen. It was because I wanted that to be highlighted that I moved this amendment. It is something that we should at least have been seen to consider before the Bill goes on to the statute book.

Humfrey Malins (Conservative, Woking)

My hon. Friend is making an interesting and good argument. He will recall that in April this year the chairman of the Criminal Bar Association, Mr. Peter Rook, appeared before the Home Affairs Committee. He and the CBA thought that so far as the forced oral sex offence was concerned, although it was an extremely serious matter, it should not necessarily come within the definition of rape. He was worried that if it were included in that definition, some juries might be less inclined to convict someone of rape.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to my hon. Friend because he takes me on to a key point. If Parliament states something in legislation as being something that members of the public do not view it as being, we will end up with a situation where there may be a reluctance to convict. Penetration of the mouth is a horrible thing and forced penetration of the mouth is revolting, but most people in my experience tend to view that as something quite different in nature and quality to rape, as we understand it on the statute book. I am anxious to ensure that the Committee is seen to have considered that important issue, and not

simply to have said, ''That is what we want, so let's get on with it.''

Vera Baird (Labour, Redcar)

The Home Affairs Committee concluded that it had no difficulty with the proposal to extend the definition of rape to include forced oral sex, so it clearly was not convinced by whatever argument Mr. Rook put forward. What is the justification, for which the hon. Gentleman is groping, for a separate offence?

Dominic Grieve (Conservative, Beaconsfield)

I think that the point was made by Mr. Rook, although I hasten to say that it was not at his prompting, nor with careful consideration of what he said to the Select Committee—although I have read that—that I tabled the amendment. My experience as a barrister is that forced oral sex is regarded as being different from rape. It is as simple as that. If that is the case, there may be a risk, and I think Mr. Rook highlighted it, that juries faced with a case of forced oral sex, especially a case where there are borderline issues about consent, for instance—the hon. and learned Lady and I know the difficulties of the issue from our previous correspondence—may be reluctant to convict for what is a very serious offence, because it would not be viewed as the offence charged: rape.

I may be worrying about nothing, and if the hon. and learned Lady wishes to persuade me of that, I welcome it. However, I did not want the matter simply to go through with everybody nodding approvingly and saying that it is a very good idea, when some interesting, possibly beneficial but possibly difficult consequences may flow from extending the definition of rape to something that certainly would not have been considered such in the past, even by the ordinary terminology of English grammar. We need to be careful about that.

I look forward to hearing from the Minister, who has this opportunity to explain why the Government came to their decision. I would like to hear a little about the policy background, about why it was felt desirable to put forced oral sex with the other two possible offences of rape, namely vaginal and anal penetration, and about the benefits that the Government think will flow from the change. If the Minister can persuade me on those points, we can move on to other things.

Chris Bryant (Labour, Rhondda)

The hon. Gentleman makes some interesting points. However, his argument about English terminology and its grammar fails because the ordinary man or woman in the street probably thinks that Bill Clinton had sex with Monica Lewinsky, yet that was only oral sex, as far as we are aware. Presumably it is now accepted in the ordinary grammar of English terminology that oral sex is part of sex, and that oral penetration by force would therefore be rape.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman makes a good point. All sorts of people say all sorts of things nowadays. Children will say that something is ''wicked'' when they mean ''terrific''. I am alive to the fact that terminology may alter over time, and I dare say that in twenty years' time ''wicked'' will mean

wicked again, or will have altered its meaning. Of course I accept that. However, I am not persuaded—this is why I am interested in hearing the views of other Committee members—that people associate the word ''rape'' with forced oral sex. If I am right, there is potentially a problem.

As I say, if other Committee members and the Minister can reassure me on the point, and explain why the approach has been taken, so be it. However, I do not think that we should blithely assume that the matter is quite as simple as it appears on the Bill.

Sandra Gidley (Liberal Democrat, Romsey)

I am afraid that the Liberal Democrats will not support the amendments. The issue boils down to violation: the violation of a weak person, usually by a stronger one. In most cases, that means the violation of a woman by a man, but increasingly there are cases of gay rape, where forced oral penetration may be more of a feature.

We have to accept that culture changes, times change and public perceptions change. In the Home Affairs Committee report on the Sexual Offences Bill, Kathy Halloran, who spoke for the Rape Crisis Federation, said:

''The law adapts to cultural changes and we have a different perception now of rape in that rape can now be rape of a male and rape of a female, it can be vaginal and it can be anal. In my view, it [can] become . . . penile penetration of the mouth and it will be accepted just as anal penetration has been accepted as rape.''

I am thinking back to when the law was first introduced. It was some years after I was a teenager in the 70s that I realised that oral sex did not mean talking about sex.

Paul Goggins (Labour, Wythenshawe and Sale East)

In which we are all now engaged.

Sandra Gidley (Liberal Democrat, Romsey)

I may have been a naive teenager, but I suspect that most of my peers were not as sexually aware as teenagers are today. There is much greater awareness in society of the fact that forced oral sex happens, and most people probably find it hard to imagine a time when such things were not readily discussed in newspapers and alluded to in the media. That is the context in which we have to put the issue. There is greater awareness of the problem, and we have to regard violation in this way as being just as serious. By creating a lesser sort of offence, we would effectively be creating scapegoats. If rape by oral penetration is made a lesser offence, might it become more common? That is something else to consider.

Finally, I was most persuaded by the fact that all the experts involved with the Bill think that the measure would be a welcome move. I cannot really argue with bodies such as the Metropolitan police and the many rape crisis organisations that support the provision, so we will support not the amendment but the Bill as it stands.

Beverley Hughes (Labour, Stretford and Urmston)

I very much welcome the amendment and the motive behind it. As the hon. Member for Beaconsfield said, it allows us to debate the issue and to hear the views of colleagues on the Committee.

I think we are all aware that, under current legislation, forced oral sex is charged as indecent assault, with a maximum penalty of 10 years. As has been said, clauses 1 and 3 redefine the physical act of rape by including non-consensual penile penetration of the mouth within the scope of that offence. That change is also reflected in a number of other offences in the Bill that make a distinction in the maximum penalty available where the sexual activity involves penetrative sex. In those cases, the proposition is that oral penetration by the penis will be treated as being as serious as intercourse. The issue was debated extensively in the House of Lords, and following debate there, the amendments were withdrawn.

In response to what the hon. Gentleman said, I first point to the weight of persuasive evidence submitted during the extensive consultation period to the sexual offences review, particularly by victims and victim support groups. That is one of the primary reasons why we have decided to include forced oral sex in the definition of rape. The great weight of that evidence was that, from the perspective of victims, forced penile penetration of the mouth can be just as abhorrent, demeaning and traumatising as other forms of penile penetration and is as psychologically harmful as vaginal and anal rape, and in some instances even more so.

It is not unusual for women and children who have been violated in this way to have long-term difficulties with eating and drinking or visiting the dentist, and that often leads to poor health, as well as having a psychological impact.

The argument has also been put that the general public—and perhaps more important, juries—may not accept that forced oral penetration amounts to rape. As has been acknowledged, we previously extended the definition of rape to include anal penetration. Looking back on those debates, we see that many of the arguments we have heard today on whether forced oral sex should be included were also made in relation to the proposal to include anal penetration. It was argued that broadening the scope of the offence from vaginal rape to include anal penetration would result in juries being reluctant to convict or the giving of lesser sentences, but there is no evidence that that has happened.

I cannot give the statistics on convictions and sentencing that the hon. Member for Beaconsfield asked for because the figures are no longer broken down into vaginal and anal penetration. The evidence suggests that judges and juries examine the individual circumstances of each case, which is exactly what they are supposed to do. Whether a case involves vaginal or anal penetration, they base their decisions on conviction and sentencing on all the circumstances, which is what the law currently allows them to do.

Everyone clearly understands that rape is an offence of non-consensual penile penetration committed by men on women and men. Society at large has embraced the change to the definition, which occurred some time ago. Taking into account the testimony of victims and victim support groups on the impact of forced oral sex, we can see no reason why juries, judges and indeed the public will not also

embrace that change—there is no evidence that they have not already done so. My hon. Friend the Member for Rhondda (Mr. Bryant) made a very apposite point in that regard.

The evidence suggests that the public and juries are open to our doing what we are doing, which is updating the definition of rape in line with the direction of public opinion. We are not anticipating public opinion, but we are introducing a definition that makes sense and builds on the evidence that we have received from victims and victim support groups. It therefore makes good sense for all forms of consensual penile penetration to be grouped together within the offence of rape.

Even if Opposition Members pressed for the definition of a separate offence in a separate clause, we would certainly not want the penalty for forced oral sex to be anything other than the same as the proposed penalty for vaginal or anal penetration. The argument made by the hon. Member for Beaconsfield supports that point. Juries and judges need the maximum possible flexibility in deciding the appropriate disposal for a particular person convicted of rape, whether it is anal penetration, vaginal penetration or forced oral sex, in order to ensure that they can take all circumstances into account. Broadening the scope of the offence of rape will ensure that the legislation properly reflects the seriousness of forced oral penetration and its potential effect on individual victims.

For those reasons, I ask the hon. Gentleman to consider not pressing the amendment. If he were to do so, we would have to resist it.

Dominic Grieve (Conservative, Beaconsfield)

I reassure the Minister that I have no intention of pressing the amendment to the vote. I am grateful for her explanation of the Government's reasoning and, on balance, her argument is correct. The public will accept the definition of rape as penile penetration, even if, as I have previously indicated, they do not currently think that that includes oral penetration.

Earlier, I acknowledged that times change, and I accept that oral penetration is a serious matter. It is perfectly proper that Parliament should emphasise that seriousness by imposing a maximum sentence of life imprisonment, and I was not suggesting that we should have anything else. If someone behaves in that way it is likely that they are capable of committing other offences within the definition of rape in any event. I hope that the new definition will stand the test of time and allow for flexibility in dealing with very unpleasant offences.

Only one of my questions was not answered by the Minister—perhaps she was not in a position to do so—but I mention it simply to place it on the record again. I think that it is likely that there will be guidelines that differentiate between the different types of penetration. If Committee members do not like that, they should be made aware of it before we reach the end of clause 1. I strongly suspect that that will be the case.

I do not anticipate that the judiciary will classify some types of penetration as being more serious than

others, but I suspect that a degree of hierarchy will develop in the consideration of the different types of penetration. If Parliament does not want that, perhaps we should express our views on the subject now so that the judiciary know about it. I say that it is inevitable and I am happy to leave it to the judges to decide on the guidelines and rules to be applied in individual cases. With those remarks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 36, in

clause 1, page 1, line 9, leave out 'reasonably'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 25, in

clause 1, page 1, line 11, after 'circumstances', insert

'of the case and circumstances and characteristics of A'.

Amendment No. 29, in

clause 1, page 1, line 11, after 'including', insert

'A's age, mental development, maturity, and'.

Amendment No. 26, in

clause 3, page 10, line 10, after 'circumstances' insert

'of the case and the circumstances and characteristics of A'.

Amendment No. 30, in

clause 3, page 2, line 10, after 'including', insert

'A's age, mental development, maturity, and'.

Amendment No. 27, in

clause 4, page 2, line 22, after 'circumstances' insert

'of the case and the circumstances and characteristics of A'.

Amendment No. 31, in

clause 4, page 2, line 22, after 'including', insert

'A's age, mental development, maturity, and'.

Amendment No. 28, in

clause 5, page 2, line 38, after 'circumstances' insert

'of the case and the circumstances and characteristics of A'.

Amendment No. 32, in

clause 5, page 2, line 38, after 'including', insert

'A's age, mental development, maturity, and'.

Dominic Grieve (Conservative, Beaconsfield)

I suppose this is the cat-among-the-pigeons amendment. The next element of clause 1 deals with a change that will be brought about—when linked to clauses 76 and 77—concerning whether there is to be a subjective or objective test of reasonableness of consent in rape cases. I thought that asking to remove the word ''reasonably'' in clause 1(1)(c) would trigger a debate on that subject. If one wished to return to the old test, one would have to do more than that, but the amendment is a device to enable the Committee to consider that issue, and no more than that.

There are further amendments, which I shall leave for my hon. Friend the Member for Woking (Mr. Malins) to expand upon, that would provide an intermediate stage between a subjective and objective test. That would provide some mitigation to the change to an objective test.

This is a major issue. We have always taken the view in this country that a person is guilty only if he has a guilty mind—although there are some offences that do not fall into that category. If someone accused of an offence of rape reasonably believes that another person has consented, then—however unreasonable that belief might appear to someone else—he is not guilty if someone decides that he did reasonably hold that belief. That has given rise to enormous problems. Those of us who attended the presentation on Operation Sapphire last night witnessed an exposé from the Metropolitan police. There is a widespread belief that there are many instances in which defendants are being acquitted as a result of the jury's difficulties relating to the issue.

Oddly enough, I do not subscribe to that latter point. I am wholly unconvinced that the change from a subjective to an objective test that we are to bring about will make a huge difference. I have always taken the view that juries, in deciding whether someone had a reasonable belief of consent, almost invariably apply their own standards. As a result, it is their view of what is reasonable or not that is likely to apply, notwithstanding anything that the judge may say by way of a direction. That said, however, there are powerful and persuasive arguments for moving to an objective test.

Vera Baird rose—

Dominic Grieve (Conservative, Beaconsfield)

At the outset, before various people start jumping up and down—I do not put the hon. and learned Lady in that category—I want to make it clear that I am not about to argue that the test should not be changed.

Vera Baird (Labour, Redcar)

I shall try not to jump too much. The hon. Gentleman talks about juries finding out about reasonable belief as if that were the rule already. He is getting himself in a knot. The proposal is to move from an honest belief. That honest belief is not necessarily reasonable and that is the problem. Many unreasonable beliefs are currently used as defences, although the jury cannot decide—the question is whether it is sure that the belief is not honest, and we are considering a change from that.

The hon. Gentleman talks about moving from a subjective to an objective test. That is not the case—any more than self-defence is an objective test. One has to consider whether the person behaved reasonably. Surely that is a subjective test, but a test to which one applies the question of reasonableness. So we are already talking about a very fair hybrid.

Dominic Grieve (Conservative, Beaconsfield)

I may have chosen my opening words badly and I apologise.

Humfrey Malins (Conservative, Woking)

No, you did not.

Dominic Grieve (Conservative, Beaconsfield)

My hon. Friend kindly says that I did not. I always make a distinction between a subjective and an objective test, because, as a barrister, that is the terminology with which I was brought up. The hon. and learned Lady makes a further distinction and I do not entirely disagree with that, but I still do not think that the words ''subjective'' and ''objective'' are unhelpful. We are moving to a situation in which it

would be possible for a person to be convicted of the offence of rape even if a jury were to conclude that he had an honest belief that the person with whom he had sexual intercourse consented. The Bill does that on the basis that, although the belief may have been honest, it was not reasonable of the person to hold such a belief. That is a profound change to the law. My principal concern is that we should not just rubber-stamp that change in a tide of enthusiasm, without working the issue out in our own minds, and as a Committee, and being satisfied that it is desirable.

My analysis of the situation is that, curiously enough, I am not sure that there will be a huge difference, which is one of the reasons why I have not lost sleep over the matter. At the same time, I acknowledge that the change may be helpful. Moreover, it is proper for society and Parliament to say that, in dealing with intimate relationships—we are dealing with issues of consent rather than a rape in a back alley—it is reasonable to demand of someone that their beliefs are reasonable. I am pretty well sold on the concept, but I do not wish it simply to go through Committee with everyone nodding approvingly and without the opportunity to hear the Government's reasoning and the opinion of other Members.

Sandra Gidley (Liberal Democrat, Romsey)

We do not accept the amendment. Quite simply, if the amendment were agreed the Bill would read:

''A does not believe that B consents.''

There is a certain amount of difficulty because A could be fixed in a view for any number of reasons. As we all know, there are a wide variety of people, some of whom we would regard as more reasonable than others. In reality, it may be that a jury would take account of circumstances and decide what was reasonable and what was not. It would do that almost automatically. However, it is not helpful to remove the premise of reasonableness, because we all live in a framework of acceptability.

The hon. Gentleman raised the point that different juries may come to different views, but unfortunately that happens anyway, however hard we try to make the legislation clear. I strongly believe that this measure should stay. The arguments were debated at interminable length in the Lords and I do not intend to repeat them here. There are other matters to move on to later that are much more important to debate. We do not support the amendment.

Humfrey Malins (Conservative, Woking)

I wish to speak to amendments Nos. 25 and 29. Amendments Nos. 26, 30, 27, 31, 28 and 32 are, in a sense, consequential amendments that apply the principles set out in amendments Nos. 25 and 29 to subsequent clauses.

I am considering the issue of reasonable belief and the wording in clause 1 that says:

''Whether a belief is reasonable is to be determined having regard to all the circumstances''.

Amendment No. 25 seeks to widen that slightly to include all the circumstances

''of the case and circumstances and characteristics of A'',

who is the defendant. Amendment No. 29 would add

the defendant's ''age, mental development'' and ''maturity'' to those factors that come into play when examining reasonableness.

It is well known that the current law is falling into disrepute and is not really sensible. Under it, an honest belief that the other party consented, even if it is mistaken, is enough to get an acquittal. There was the quite appalling case of Morgan in 1975. That subjective test did not require the defendant's mistaken belief to be objectively reasonable. There were, and are, good arguments for changing that.

Stephen Hesford (Labour, Wirral West)

Is there not a disjunction between the hon. Gentleman and the hon. Member for Beaconsfield? Opening the debate, after the intervention of my hon. and learned Friend the Member for Redcar (Vera Baird), the hon. Member for Beaconsfield accepted the hybrid characterisation that my hon. and learned Friend suggested, which deals with this point. The characteristics do not need to be set out because the jury applies itself to the defendant in front of it.

Humfrey Malins (Conservative, Woking)

I hear what the hon. Gentleman says, but the truth is that there is nothing between my hon. Friend the Member for Beaconsfield and myself on such matters. What we are trying to do, which is why we will welcome contributions from other Committee members, is to spend a little time this morning on an important clause. Had we not tabled probing amendments to get a debate going, this debate would not have got under way. We hope that it will be useful. The hon. Gentleman and I have served on Committees before together, and I can tell him that I will not press my amendments to a vote, but I want to float them and to put before the Committee one or two interesting parallels about subjective and objective tests in criminal law, just to see whether that advances us any further. If it does, that is to the good. If it does not, it will be a disappointment, but we shall see how we go.

Yes, the old law fell into disrepute, and I believe that the way in which this Bill developed in the House of Lords was sensible in coming to the definition of reasonableness now before us. But this is not an easy subject. To illustrate that, my hon. Friend was right to say that, as often as not, a jury, consisting of 12 straightforward citizens, will take an overall view about the case before it, and instinctively reach a verdict on what it has seen and heard, and may find complicated directions about subjective, objective, reasonable and unreasonable slightly difficult. I hope that our conversations will bring some realism to the matter and reflect throughout that we understand that a jury will make its own instinctive decision.

Sally Keeble (Labour, Northampton North)

Would the hon. Gentleman not accept that a jury would make the decision based on the information presented to it? One problem with his amendments is that they make it possible to trail the victim's entire history and personal circumstances through the courts. Previous legislation has specifically sought to prevent that, as it is one of the big barriers to women pursuing prosecutions. However, the problem is clearly set out in the conditions included in his amendments.

Humfrey Malins (Conservative, Woking)

The hon. Lady makes a good point. If my amendments were accepted there would be some difficulties. Mr. Peter Rook illustrated to the Home Affairs Committee the difficult territory in which we are operating when he was asked about the existing test, as far as the law is concerned, on belief. He said:

''I am not sure I can answer . . . There is a general feeling that it should not be an entirely subjective test. Criminal lawyers are divided on the issue. The Criminal Bar Association, however, is firmly in favour of changing from the rule in Morgan to not a wholly objective test, but what one might call a subjective objective test.''

We are moving into interesting territory, as juries, on listening to that sentence, might begin to scratch their heads. Mr. Rook continued:

''It seems to us that, if you have a wholly objective test, then there is a great risk if you have it judged by some standard external for the defendant, the reasonable man, that in a case, say, where the defendant has a learning difficulty or is simply very young, if they are judged by some objective reasonable man standard, then there may be a risk of injustice in that sort of case.''

I want to focus on the difference, in the simplest possible way, between a subjective and objective test. With a subjective test, one is examining what one defendant believes, and that takes us back to the Morgan law. With an objective test, one judges the defendant by the standards of a reasonable outsider.

There are some interesting parallels in criminal law. The offence of theft concerns dishonestly appropriating property belonging to another with the intention permanently of depriving them of it. From time to time, there are difficulties in court over ''dishonestly'', and judges are encouraged to tell the jury that it is an ordinary word with an ordinary meaning. In a theft or handling case, matters sometimes become more complicated and one has to consider the state of mind of the particular defendant, as opposed to what a reasonable person viewing the facts from the outside would judge to be the situation. In the law of theft, there is a balance between the subjective and objective tests of dishonesty.

I move to the real focus of my amendments by quoting the phrase:

''Whether a belief is reasonable is to be determined having regard to all the circumstances''.

The key words are,

''having regard to all the circumstances''.

What do they mean? Do they mean all the circumstances of the case? Do they include all the circumstances of the defendant? If that is a slightly clumsy phrase, would they include all the characteristics of the defendant? Might that phrase be broad enough to include the defendant's age? Might it be broad enough to include his mental development and his maturity? After all, a judge will have to direct a jury on the matter and someone, somewhere, will raise the issue in court. When the Judicial Studies Board issues a standard direction for judges to give to juries, someone will have to spend some time on the words ''all the circumstances''. I can picture the scene. A jury, having been directed, may send a note back to the judge asking if it could take into account any such factors when deciding whether the defendant reasonably believed that the complainant consented.

Vera Baird (Labour, Redcar)

Is it not absolutely clear that because paragraph (c) refers to the individual defendant his nature would be entirely taken into account? He is the person at whom the jury is looking. Clause 1(1)(c) states:

''A does not reasonably believe that B consents.''

If that were a wholly objective test, it would say ''and a reasonable person would not have believed that B consented.'' It is clear that A is the person that we have to look at. Does the hon. Gentleman think that ''all the circumstances of the case'' ought to include all the circumstances of the complainant? She might have been drunk, or she might be mentally ill or have learning difficulties. Does he think that the definition should be wide enough to include that, and if so, why did he not mention it?

Humfrey Malins (Conservative, Woking)

Let me take the first point of that intervention and say to the hon. and learned Lady that she has done the Committee a service. When Peter Rook appeared before the Home Affairs Select Committee, and in subsequent discussions, he said that he hoped that at the end of the day the circumstances or characteristics of the defendant such as I mentioned a moment ago would be part of the whole scene put before the jury. They should be properly taken into account.

I look to the Minister to say that ''all the circumstances of the case'' is a phrase that is wide rather than narrow. There is an interesting parallel with motoring law. If a defendant comes before the court asking for his licence not to be endorsed in relation to a specific offence, he can put forward special reasons, but those must relate to the offence and are not allowed to relate to the offender.

Sally Keeble (Labour, Northampton North)

Will the hon. Gentleman comment on the fact that clause 76 sets out some of the circumstances? If the provisions referred to the characteristics of the complainant—the victim—that would make it possible to drag through the court her entire circumstances and characteristics, which might include how long her skirt was, where she was standing, the time of night and the belief—as in the Morgan case—concerning the sort of sex she liked. That was one of the main problems in that case. My understanding is that clause 76 sets out the circumstances, but would he accept that to include the characteristics of the woman would make it impossible for women to make complaints?

Humfrey Malins (Conservative, Woking)

Yes. I am interested in the hon. Lady's intervention. In the intervention of the hon. and learned Member for Redcar, she tried to draw me to the proposition that we should be looking at the circumstances and characteristics of the complainant herself—if it is a lady complainant. That is difficult territory and I would be reluctant to be drawn down a road that involved examination of the complainant's characteristics. The hon. and learned Lady asked whether the length of a lady's skirt should be a factor taken into account. I regard that as an outrageous proposition, which has absolutely nothing to do with the matter, but I think that the hon. and learned Lady gave that example not because she thought that it was

a good idea but because it is illustrative of the sort of characteristic of a complainant that might in some circumstances be put forward. I do not think that that type of characteristic is at all relevant.

I have been slightly long-winded, for which I apologise, but the issue of reasonable belief is important. I am trying to get from the Government an acknowledgment that the phrase ''all the circumstances'' will in due course be construed sufficiently widely to ensure that defendants who are, perhaps, younger or more immature than others do not find themselves judged by a standard that they would fall below were it applied to them. Those who are perhaps not the reasonable man on the Clapham omnibus should not necessarily be judged according to that standard if their maturity, development or other factors involved in the case do not bring them up to it.

The question is the width of that phrase, how it will be construed in the courts and what progress has been made on the drafting of a model direction for judges to give. It is useful to discuss such matters, and I look forward to other contributions. The Committee will know that my hon. Friend the Member for Beaconsfield and I seek this morning to raise these issues only to create a situation in which they can be discussed. I am pleased to the extent that I have done that, and I hope that the debate proceeds.

Beverley Hughes (Labour, Stretford and Urmston)

I was reflecting during the debate on what I think is one of the core issues in the Bill: the reasonableness test. As hon. Members will know, that runs through several clauses.

When I was a Back Bencher some years ago and a member of the Youth Justice and Criminal Evidence Bill Committee, I sought, as did a number of hon. Members, to persuade the then Home Office Minister that we ought to look more fundamentally at the prevailing requirement on honest belief. That was because it was such an impediment to bringing sexual offence cases to court in the first place and, having got cases to court, to securing convictions in anything like that number of cases. Unfortunately we did not persuade the Minister that that was the right time to change what he regarded as a fundamental and long-standing cornerstone of criminal law in this country. I am really happy now to be a Minister on a Bill where we are agreeing—I think that there is broad consensus—that the provision on honest belief needs changing if we are to be fair to victims of sexual offences and to defendants in a more reasonable way, if I may use that term, than at present.

Hon. Members will know that this matter was the subject of much debate in the other place and that there was much helpful amendment. We come to the clause now with, I have to acknowledge, a much improved and clearer formulation than that which was in the Bill to start with. I have some sympathy with Opposition Members because I absolutely understand that they wish to raise the issue and to have the debate here, but we are in a sense much further on now and people are broadly content.

Dominic Grieve (Conservative, Beaconsfield)

There is no doubt that, if the Bill were being debated in the state in which it was first published, there would be a much more vigorous

exchange of views. I should put on the record that I am extremely grateful for what was done in the other place because it improved this part of clause 1 immeasurably.

Beverley Hughes (Labour, Stretford and Urmston)

It certainly made it much clearer, and the intention of the clause, and of the reasonableness test in particular, can now more straightforwardly be realised. Although there were good intentions behind the original formulation, the practicality of applying it became apparent to everybody during the debate—but there is no point in rehearsing those arguments.

I shall begin by saying why the introduction of the reasonableness test is incredibly important. Leaving aside stranger rape, where lack of consent is generally easier to establish, it is commonly accepted that guilt in rape cases is often difficult to prove, especially where the parties are acquainted or, indeed, well acquainted. As my hon. and learned Friend the Member for Redcar clarified at the beginning of the debate, under existing legislation, even where the accused's belief that the complainant consented seems completely unreasonable given all the circumstances of the case, he must be acquitted if the jury is convinced that his mistaken belief was honestly held. We believe that that position is no longer acceptable. It undermines the faith that victims are prepared to place in the criminal justice system and discourages many of them from bringing cases to court.

The current position needs changing and is wrong for the following reasons. It implicitly authorises the assumption of consent regardless of the victim's views. It encourages people to stick to myths about sexual behaviour: for instance, that no really means yes. The mistaken belief argument can be deployed effectively in court even in situations where it has been easy to seek the consent of the victim, and the cost to the victim of the forced sexual activity is very high. As we heard from some of the police officers last night, it is easy to raise the defence of mistaken belief and consent, but hard for the prosecution to disprove it. I do not think that any Committee member believes that there is any justice in a situation whereby a person who has been raped, or subjected to other forced sexual activity, sees an assailant go free because of a claimed belief that society as a whole would have found unreasonable. That is an untenable position for us to perpetuate.

The effect of the reasonableness test that we propose is that, where the prosecution can prove that the sexual act took place, the victim did not consent and the defendant did not reasonably believe that sexual activity was consensual, he will be convicted of an offence. The probing amendment would remove that test and return us to the current position.

The way that the reasonableness test would work in practice is that the prosecution would be required to prove that the defendant did not have a reasonable belief in consent. That is supported by explanation of the criteria to be used to determine whether the defendant's belief in consent was reasonable in relation to the alleged offence. The jury is required to have regard to all the circumstances, including any steps the

defendant took to establish that the complainant did consent to the sexual activity.

We recognise that not every single sexual act has to be preceded by specific actions on the part of the defendant, especially where the defendant and the complainant are in a well-established sexual relationship. None the less, we think that it is still imperative that the defendant must reasonably believe that his partner consented to the sexual activity at the time in question. Doubt is most likely to arise in cases in which the defendant and the complainant are not in a well-established relationship and where it would be reasonable to expect the defendant to have taken steps to ensure consent. There is nothing unfair in requiring that a defendant should have acted reasonably in all circumstances to establish consent. We are anxious—indeed, I am sure that all hon. Members are anxious—to ensure that under the law those who are guilty of rape may be brought to justice and those who are innocent may be acquitted. Our proposals reflect the common understanding of how things should be and they will help jurors to consider the elements that amount to rape, so that they can reach fair, just decisions.

The hon. Member for Beaconsfield felt pessimistic about the test and, although I think that he supports it overall, said that it would not make much difference. I remind him that yesterday evening—I think he was there—we heard from some of the police officers involved in Operation Sapphire, who said that the reasonableness test was important. It will allow the police to interview suspects more comprehensively and it will allow a more direct investigation of the suspect's behaviour—not just the victim's.

The police said, ''Yes, we can ask those questions now, but the point is that the answers would be so much more relevant with the reasonableness test than they could ever be with the honest belief in consent.'' That point of view, which was expressed by police officers on the front line, who are trying hard to deal with such cases, bring them to court and get convictions in those cases that warrant them, is a powerful piece of evidence, which we must take seriously.

Dominic Grieve (Conservative, Beaconsfield)

I listened carefully to what the police said—indeed, if I may say so, I hope that they are right—but I was slightly surprised by the way they said it. What they said about the current inhibitions on questioning was somewhat odd. First, in my experience inhibitions on questioning have not arisen from the existence of honest belief. Secondly, having participated in rape trials, I have always felt that whatever directions judges give to juries, they tend almost inevitably to apply their own standards. That is one of the reasons why I question whether the measure would make a huge difference to the conviction rate. We shall have to wait and see whether that happens.

Beverley Hughes (Labour, Stretford and Urmston)

On the police officers' main point, I did not take it to mean that their questioning was currently inhibited, but that such lines of questioning

are largely irrelevant, because the defence of mistaken but honest belief makes the answers to questions about suspects' behaviour largely irrelevant.

On the hon. Gentleman's point about juries, we shall have to wait and see. I am not as pessimistic as he is. It is much more common-sensual for a jury to make a judgment based on reasonableness, rather than having to accept, as is often the case at the moment, that someone's belief was honest, although wholly unreasonable in a common-sensical kind of judgment.

Vera Baird (Labour, Redcar)

I do not share the pessimism of the hon. Member for Beaconsfield. It seems to me that people may now be pressed. They may say, ''Well, I believed that she was consenting,'' but the police officer would be able to ask, ''Who would regard that as reasonable? Look here, mate, even I don't think that is reasonable. Do you think that the ordinary person in the street would think—when she is protesting—that that is reasonable?'' There would not necessarily be fewer acquittals—although I hope that there would be—but one especially hopes that there would be more guilty pleas, which would save the woman having to go to court.

Beverley Hughes (Labour, Stretford and Urmston)

I am grateful to my hon. and learned Friend for that. She is correct.

The other amendments would require the jury to consider the personal circumstances and characteristics of the defendant in every case that came before court. Although I know that the hon. Member for Beaconsfield tabled the amendments to stimulate debate, they would attach particular relevance in statute to age, mental development and maturity of the defendant, and at least two of those would be particularly difficult to define in law. I understand his motivation in tabling the amendments, and the concern that the law must not result in a defendant being convicted and sentenced to life imprisonment when he genuinely believed that the other party consented. It might have been reasonable for a defendant with a particularly young mental age, for example, to hold such a belief.

I assure the hon. Gentleman and other members of the Committee that the existing formulation of the reasonableness test in the Bill allows such cases to be determined fairly, so that the jury can take into account such characteristics of the defendant as are relevant when deciding on reasonableness.

In a rape case, under clause 1, the prosecution must prove that penetration took place, that the complainant did not consent, and that the defendant did ''not reasonably believe'' that the complainant consented. Certainly, we accept that in some circumstances it is fair for the jury to take relevant characteristics of the defendant into account when considering whether he reasonably believed that the complainant consented. That is why the reasonableness test does not rule out that possibility. In appropriate cases, if a defendant is very young or has a mental disorder, the jury will take that into account when considering whether his belief in consent was reasonable.

Hon. Members may know that case law on the so-called ''reasonable man'' has held that characteristics

such as a particularly low IQ in a defendant may be relevant in any case, and there is no reason to suppose that that will not hold true for the ''reasonable belief'' test in the Bill. In each case, that will be for the jury to decide.

I do not think it is right or necessary to provide in statute for a defendant's characteristics always to be taken into account. That could appear seriously to undermine the reasonableness test, if reasonableness is to be judged against the whole of a defendant's character, including, for example, potentially, sexual deviancies. I think that the provisions of the Bill are entirely preferable. I hope that, with those assurances, the hon. Member for Beaconsfield will agree that the issue is best left to the good sense of the judge, who is best placed to decide whether it is necessary to introduce consideration of a defendant's characteristics, and which characteristics are relevant.

I hope that that satisfies the hon. Gentleman that there is no circumscription in the formulation of the Bill. The judge or jury can take into account all or any characteristics and circumstances that they wish to, and it is best that we leave that decision to the judge and jury for each case.

Vera Baird (Labour, Redcar)

I want the Minister to take up the point to which my hon. Friend the Member for Northampton, North (Ms Keeble) alluded. Subsection (2) says that one must look, where appropriate, at the

''steps A has taken to ascertain whether B consents.''

Does the Minister agree that that specification should focus the court's attention on what is happening at the time of the offence, and push to the margins of relevance anything that has been heard before about how the complainant might have reacted if the defendant tried to have sex with her—in other words, that it should make the previous sexual history of the complainant far less relevant?

Beverley Hughes (Labour, Stretford and Urmston)

Yes, I agree. My hon. and learned Friend will be aware that matter of the previous sexual history of the complainant in cases of sexual offences is circumscribed already by the Youth Justice and Criminal Evidence Act 1999, to which I have referred. I invite hon. Members to withdraw the amendments.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for facilitating the debate and particularly for the answers that she gave to the amendments tabled by my hon. Friend the Member for Woking. I found those answers, which were about leaving the discretion of bringing in any particular characteristics to the judge and the jury, most cogent and persuasive. On that I am wholly satisfied. I am also wholly satisfied that this part of the Bill cannot be improved further; that is a tribute to what went on in the other place.

Sally Keeble (Labour, Northampton North)

Does the hon. Gentleman accept that it is important that excuses should not be found for bringing in the woman's previous history or circumstances, which I understand have been used to support a defence of honest belief? It is particularly important that the ability to make such excuses be circumscribed to ensure that the provisions that were included in the legislation to which the Minister referred are completely watertight.

Dominic Grieve (Conservative, Beaconsfield)

One of the subtle but important changes that the new clause would bring in is the shift to a position where there is an obligation on someone about to have sexual relations with another person not to act negligently in terms of whether consent exists or not. How that impacts on juries is another matter; I do not want to repeat myself. That is the subtle shift that we are introducing. To that extent, I accept that the question of previous sexual history and its relevance may thereby be removed. However, there may be occasions where previous sexual history will be relevant and there may be circumstances in which it will properly be used as evidence; I understand that that will still be possible if the judge considers that the interests of justice require it.

I welcome the fact that we are removing ourselves from the situation where previous sexual history was simply the defence counsel's tool of cross-examination to blacken the reputation of the complainant. The point is quite clear: irrespective of the previous sexual history of the complainant, the defendant should not be absolved from the obligation to act reasonably or to have a reasonable belief. In those circumstances, I certainly welcome that shift.

As I said earlier, we have engaged in an analysis of legal niceties—of subtle changes of wording. I do not mean that pejoratively. There may be profound changes in the way that juries approach rape cases as a result of that. Outside the Committee, anxiety has been expressed over the low conviction rates for rape cases. Some people believe—I do not disassociate myself from such a belief—that the very low conviction rate must be a reflection of the fact that many guilty people are not being convicted, and there is an anxiety to raise conviction rates.

Although it will be interesting to see what happens, I have never been persuaded that the Bill will necessarily achieve a dramatic change to that situation. The problem with date rape—I do not care for the term but I think that the hon. Member for Northampton, North knows what I am talking about—is that juries have difficulty in deciding whether there was consent where there may not be independent evidence apart from the complainant's and the defendant's. I read the Bill when it first went to the Lords and when it came back from the Lords; I wait to be persuaded that, whatever form it takes, the Bill will lead to some dramatic change in the way in which juries can take their snapshot of what happened so that they will conclude more readily that defendants are guilty. The difficulty lies in their being unable to be sure whether there was consent.

There is no doubt that we are talking about a subtle shift. As I was trying to say earlier, it is a subtle shift from a situation in which, in my judgment, juries did not get particularly hooked on the niceties of honest belief if they did not consider that the belief was reasonable. There may be some cases in which that happened, but I am not completely persuaded that that is the nub of the problem.

The Committee wishes justice to be done. That entails the conviction of the guilty and the acquittal of the innocent. I am satisfied that the change does not raise the risk of more innocent people being wrongly

convicted and that is why I am wholly content to see it go through in this form. I am still not persuaded that there will be the dramatic change that some people have suggested, with more convictions.

Stephen Hesford (Labour, Wirral West)

With respect, is not the hon. Gentleman missing the point? I believe that the conviction rate will go up, but even if he were right about that, does he not take on board the point made by my hon. Friend the Member for Northampton, North, who said that the measure would stop the victim being raped again in court?

Dominic Grieve (Conservative, Beaconsfield)

The change may have the desirable effect of further curtailing the ability to engage in what I would call irrelevant cross-examination about previous sexual conduct. That has already been curtailed, as was acknowledged earlier. This is an area of practice that I have not dealt with in recent years, so I must accept that I have not seen in practice in court how the measures have worked and whether they have been as effective as was hoped when they were introduced.

The change is an improvement—I need not say more—so I am happy to welcome it in a positive sense. I am not just saying that I go along with it. The definition is better than the previous one. I am completely comfortable with what we are doing. I wanted to stimulate the debate and I am grateful to the Minister for providing, especially towards the end, such a reasoned and cogent explanation of why the measure is good. All I am saying is that the measure is not a panacea for the problem that exists at the root of date rape complaints, which is that juries find it difficult to be satisfied, so that they are sure, that the offence was committed.

Vera Baird (Labour, Redcar)

It is interesting to contemplate how things might work. Currently in rape cases, jury members know that they have to deal with consent so they have that in the forefront of their mind, but as soon as the man gives evidence that he believed that the woman was consenting—just by going into the witness box and saying that she was—he raises the other defence as well. I wonder whether juries bother to unwrap that or whether they think, ''We're not sure whether she was consenting or not, but, whatever we think, he thought she was, so that's how it goes.'' Now they will have to stop before they do that and say, ''We must unpack the two and ask ourselves the second question: was it reasonable for him to take that view?'' I think and hope that that will happen.

Dominic Grieve (Conservative, Beaconsfield)

That is what juries will now have to do and that may make a difference to their approach. Taking the most absolute and pessimistic view, under the old system, on the basis of the defence of honest belief, no one in a date rape case would ever have been convicted. However, we know that people were convicted. Juries clearly had the ability to conclude that a belief was not honest. I do not want to go over the ground and lower the Committee's enthusiasm for what we have done. It will be interesting to see how the measure affects conviction rates and whether the

feedback from the courts is that it has had a dramatically different impact on the way in which juries are seen to approach the reasoning of concluding whether someone is or is not guilty. That is a small and perfectly reasonable change to make because the underlying principle is correct. I would not want the public to conclude—other Members may differ—that this is a dramatic change that will lead to enormous changes in conviction rates. I do not think that it will, but I may be proved wrong. If I am proved dramatically wrong, I may start to worry that we have gone too far. Before I do that, I will wait upon the results. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 37, in

clause 1, page 1, line 13, leave out subsection (3).

It would be sensible not to discuss the amendment now and leave it until clauses 76 and 77. That would remove the references to clauses 76 and 77 in clause 1, which would be to remove presumptions. I am not sure whether the Minister agrees with me about the best time to debate that—now or when we consider clauses 76 and 77—but I do not want to take up the Committee's time unnecessarily. As I reflected on this a few minutes ago, it occurred to me that it might be equally sensible not to develop arguments now, as I do not want to force the amendment to a vote, but leave the discussion until we consider clauses 76 and 77. If the Minister would prefer to take the opportunity to explain the rationale behind the presumptions, it might be helpful for the Committee to hear it now and to discuss it later.

Beverley Hughes (Labour, Stretford and Urmston)

I do not have any strong views on the matter except that it would be more helpful to the Committee briefly to discuss the reasons why we introduced presumptions in the first place—to set out the principles now, and to turn to the proposals later.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister. On the basis that she intervened, I will develop my argument further.

Clearly, clauses 76 and 77 introduce presumptions that will have a very material impact on the way in which rape trials take place. They raise presumptions about the absence of belief in consent. I am grateful for the work done in the other place on those clauses, particularly clause 76. One of the consequences of that work was entirely to remove my anxieties about clause 76, and I am comfortable with the notion that there should be presumptions about the absence of belief in consent. The circumstances listed in clause 76(2) are largely correct.

The alternative approach would be to say that there is no need for the presence of such presumptions, so I should like the Minister to explain the public policy reasons for inserting those presumptions. They are rebuttable, of course, and they still leave the onus on the prosecution to prove their case if a defence is raised. However, the presumptions oblige the defendant to enter the witness box to provide an explanation at least for what he says happened. All those things are desirable.

I say that mindful of the fact that the basic presumption in our law is that it is for the prosecution to prove their case. Although I am unsure whether this is the best analogy to make with rape trials, in my health and safety work I am aware that there are several areas of law where shifts in the burden of proof have been introduced. The shift contemplated in clause 76 is sensible.

I have a query, which I shall return to later, about the possible curious consequences of clause 77(2)(b), but I do not want to amplify my comments at this stage. Again, I accept that there may be circumstances in which there should be conclusive presumptions, and one such presumption should certainly be where the defendant intentionally deceives the complainant as to the nature or purpose of the relevant act.

I look forward to hearing the Minister's brief explanation. Perhaps we can return to one or two of the detailed points when we examine those two clauses.

Beverley Hughes (Labour, Stretford and Urmston)

As the hon. Gentleman says, clauses 76 and 77 were the subject of much debate and amendment in another place, and we are therefore working with improved proposals.

The amendment seeks to disapply the presumptions from the offence of rape. Although it is a probing amendment, I shall make it clear that the presumptions apply to all generic, non-consensual offences in the Bill. It will be helpful if I outline the policy justifications for the presumptions and how they will work in practice.

The presumptions in relation to the absence of consent are designed to make clear in statute the circumstances in which consent is unlikely to be present and in which the jury is entitled to presume, either rebuttably in the case of clause 76 or conclusively in the case of clause 77, that the sexual activity complained of was non-consensual and that the defendant had no reasonable belief in consent.

The effect of the circumstances set out in clause 76 is that where the prosecution can prove that the defendant did a relevant act as defined in clause 78, that the circumstances described in clause 76(2) existed and that the defendant knew that those circumstances existed, the complainant will be presumed not to have consented to the relevant act and the defendant will be presumed not to have reasonably believed that the complainant consented.

In order for those presumptions not to apply, the defendant must satisfy the judge from the evidence that there is a real issue about consent and/or his reasonable belief that is worth putting to the jury. The evidence relied on will probably be given by the defendant himself in the witness box, on behalf of the defendant by a defence witness or by the complainant during cross-examination.

Sandra Gidley (Liberal Democrat, Romsey)

I am strongly in favour of clause 76, but it might cause difficulty in a case involving a couple who enjoy sado-masochistic sex, which would be covered by clause 76 if violence against a person were involved. Sado-masochistic sex is not generally a problem because it is consensual, but where such a relationship breaks down there may be a vexatious

complaint. In that case, would there not be considerable difficulties when the defendant legitimately produced a credible defence?

Win Griffiths (Labour, Bridgend)

Order. We are in a difficult position because the amendment seeks to disapply the two clauses. We must avoid getting on to the substance of the two clauses, unless an argument has been made as to why the amendment should be supported or rejected. I ask Members to bear that in mind when they intervene.

Beverley Hughes (Labour, Stretford and Urmston)

I am certain that the hon. Member for Romsey (Sandra Gidley) can return to that point when we debate the detail of the presumptions. It is unlikely that there would be a complaint in such circumstances, so clause 76 would not apply. Furthermore, it would probably be more straightforward for a defendant to rebut such a case.

I wish to return to the way in which the presumptions will work. If the judge were satisfied that there was sufficient evidence to justify putting the issue of consent to the jury, the matter would have to be proved by the prosecution in the usual way. If the judge did not believe that the evidence relied on by the defendant met the threshold, the judge would direct the jury to find the defendant guilty—assuming that the jury was sure that the defendant did the relevant act, that the circumstances under subsection (2) applied and that the defendant knew that.

The effect of the two conclusive presumptions under clause 77, such as where the defendant deceived the complainant about the nature or purpose of the sexual act or where he deceived the complainant about his identity by impersonating someone known personally to the complainant, is that it shall be conclusively presumed that consent was not present and that the defendant did not believe that the complainant consented.

It is useful to outline the way in which the presumptions will work. The policy intentions behind them are twofold. First, the conclusive presumptions are based on existing statute and case law. In other words, one of the principles behind the proposal is that we should take steps to clarify existing case law and incorporate it into statute. It is right that the new legislation should reflect that position. Secondly, we believe that there is real value in making a statement in the legislation about the circumstances in which sexual activity is not acceptable. It will provide juries with a clear framework within which to make fair and just decisions, and serve as a clear statement to the public more generally about what we as a society regard in a sense as a bottom line in terms of sexual activity. The presumptions reflect a widespread consensus, as the review ''Setting the Boundaries'' demonstrated.

We believe that the presumptions in relation to consent and belief in consent will help to redress the balance in favour of victims. We hope also that that will encourage them to put their faith in the criminal justice system and bring more cases to trial. I have outlined to the hon. Member for Beaconsfield our intentions behind the principle of including some presumptions, rebuttable and conclusive. Indeed, it is

in the interests of fairness to the defendant that, when deciding on the formulation of those presumptions, we frame the legislation in terms mainly of rebuttable, instead of wholly conclusive, presumptions. That will strike the right balance between the interests of the victim and the defendant.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for providing a helpful introduction to our further discussion when we debate clauses 76 and 77. I do not wish to address the Committee further. The amendment was a probing amendment. I am satisfied with the principle that there should be rebuttable and some conclusive presumptions. I am happy that they should apply across the board, especially in rape cases.

However, oddly enough I have a convoluted lawyer's concern about the conclusive presumption of impersonation under clause 77, to which I shall return. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Sandra Gidley (Liberal Democrat, Romsey)

I beg to move amendment No. 1, in

clause 1, page 1, line 14, after 'liable,', insert

'if aged 18 or over at the time of the offence.'.

Win Griffiths (Labour, Bridgend)

With this it will be convenient to discuss the following:

Amendment No. 2, in

clause 1, page 1, line 15, at end insert—

'(5) Unless subsection (4) applies, a person guilty of an offence under this section—

(a) is liaible on conviction on indictment, to imprisonment for a term not exceeding 15 years;

(b) prior to sentencing, shall be subject to a comprehensive assessment by a Youth Offending Team;

(c) shall only be subject to notification requirements under Part 2 of this Act following an assessment of the risk that he poses to the public.'.

Amendment No. 3, in

clause 3, page 2, line 13, after 'liable,', insert

'if aged 18 or over at the time of the offence.'.

Amendment No. 4, in

clause 3, page 2, line 14, at end insert—

'(5) Unless subsection (4) applies, a person guilty of an offence under this section—

(a) is liaible on conviction on indictment, to imprisonment for a term not exceeding 15 years;

(b) prior to sentencing, shall be subject to a comprehensive assessment by a Youth Offending Team;

(c) shall only be subject to notification requirements under Part 2 of this Act following an assessment of the risk that he poses to the public.'.

Amendment No. 5, in

clause 4, page 2, line 25, after 'liable,', insert

'if aged 18 or over at the time of the offence.'.

Amendment No. 6, in

clause 4, page 2, line 29, at end insert—

'(5) Unless subsection (4) applies, a person guilty of an offence under this section—

(a) on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years;

(c) prior to sentencing, shall be subject to a comprehensive assessment by a Youth Offending Team;

(d) shall only be subject to notification requirements under Part 2 of this Act following an assessment of the risk that he poses to the public.'.

Amendment No. 8, in

clause 5, page 3, line 10, leave out subsection (5) and insert—

'( ) Unless subsection (4) applies,

(a) a person guilty of an offence under this section, if aged 18 years or above at the time of the offence, is liable—

(i) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding 10 years.

(b) a person guilty of an offence under this section, if aged 18 years at the time of the offence, is liable—

(i) on summary conviction, to imprisonment for a term not exceeding 3 months or to a fine not exceeding the statutory maximum or both;

(ii) on conviction on indictment, to imprisonment for a term not exceeding 5 years.

( ) A person aged below 18 years at the time of the offence—

(a) prior to sentencing, shall be subject to a comprehensive assessment by a Youth Offending Team;

(b) shall only be subject to notification requirements under Part 2 of this Act following an assessment of the risk that he poses to the public.'.

Sandra Gidley (Liberal Democrat, Romsey)

The amendments were tabled because of a worry that the Bill was a catch-all Bill and because there are cases in which young people under 18 are accused of rape. We do not want a young person who has committed an offence before his 18th birthday to receive a life sentence. We also felt as a party that children in that position need help and support, and would need to be subject to an assessment that would be conducted by a multidisciplinary authority as well as a youth offending team.

Clauses 1, 3, 4 and 5 lay out the offences in relation to non-consensual sexual activity, rape, assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. The clauses do not make a distinction between over-18s and under-18s. That would leave under-18s liable to life imprisonment for rape and assault with penetration, a sentence of 10 years for sexual assault, life for causing a person to engage in sexual activity without consent where the offence involves penetration, or 10 years in cases where penetration does not occur.

I accept that the clauses deal with the most serious sexual offences, and their seriousness must be reflected by the maximum sentencing available to the courts. We believe that making children liable to such excessively long sentences is probably inappropriate. The 1989 convention on the rights of the child, to which the UK is party, provides that children should be treated in a manner that takes into account their age and the desirability of promoting their reintegration and the child's assuming a constructive role in society. The state is obligated to promote the establishment of laws and procedures that are

specifically applicable to children. The convention further provides that detention shall be imposed only as a last resort and for the shortest appropriate period, and that life imprisonment shall not be imposed without the possibility of release where an offence was committed by someone under the age of 18.

Although the Bill sets out maximum rather than mandatory sentences—therefore, it is likely that juveniles would receive a reduced sentence—the UN Committee on the Rights of the Child stated that legislation that sets such high sentences for juveniles actually violates article 37 of the convention. I would be grateful if the Solicitor-General commented on that. Under-18s should be treated differently from adults. Consequently, the amendments tabled to clauses 1, 3, 4 and 5 would introduce a subsection providing for a low and maximum sentence for persons aged under 18 at the time of the offence. That sentence is still fairly stringent, in my opinion, so it is not the case that we are treating the crime lightly in any way.

Hilton Dawson (Labour, Lancaster and Wyre)

I am in sympathy with much that the hon. Lady says, but does she really think it appropriate to continue to keep such an issue so firmly within the criminal justice system? If we are looking at cases of children who could be only 10 years old, should we not place them more firmly within the multidisciplinary assessment and the child protection framework?

Sandra Gidley (Liberal Democrat, Romsey)

I thank the hon. Gentleman for that intervention. I was hoping for support from him because I know that he is a great supporter of children's rights. In an ideal world, the crucial thing would be to involve younger rapists—we have to admit that such cases do happen—in a child support system. We have to provide such support; it is the right thing to do. We are faced with a Bill that does not do that, and the amendment is really a way of raising the issue.

We are concerned that the Bill does not include any formal or explicit obligation for pre-sentence reports to be carried out before sentencing under-18s. Although existing legislation and the Criminal Justice Bill include provisions for pre-sentence reports for offenders, including those under 18, to rely solely on those provisions would mean ignoring the specialised treatments that young sex offenders require. Furthermore, under the Criminal Justice Bill the courts will have an obligation to order a pre-sentence review only if the case is triable either way, rather than on indictment. Therefore, a pre-sentence report will not be obligatory for the most serious offences under the Bill—those set out under clauses 1, 3, 6, 7 and 9.

Although pre-sentence reports under the Criminal Justice Bill are designed to assist the court in determining the most appropriate method of dealing with an offender, it is of some concern that such reports for young sex offenders will focus far too heavily on the risk posed to the public rather than give due weight to the most beneficial way of rehabilitating the juvenile. That links into the intervention made by the hon. Member for Lancaster and Wyre (Mr. Dawson).

The amendments include a new subsection to the clause relating to under-18s, which would provide for a pre-sentence report to be carried out by the youth offending team so that recommendations regarding disposal take full account of the child's needs.

Dominic Grieve (Conservative, Beaconsfield)

Would that not already happen without its having to be spelled out in the legislation?

Sandra Gidley (Liberal Democrat, Romsey)

I think I mentioned that it would not necessarily happen. There is provision for it to happen, but it would not be automatic.

The youth offending team could of course be substituted for an appropriate officer in accordance with the provision in the Criminal Justice Bill. I accept that the Bill team might consider that provisions for pre-sentence reports do not fall within the scope of the Bill and could be provided for in the accompanying guidance. However, the strength of feeling about the issue is such that we have decided to highlight the concern by including it in the amendments.

I shall turn to notification requirements. Under-18s will automatically be subject to the notification requirements of conviction for both non-consensual activity under clauses 1 and 3 to 9, and consensual activity under later clauses. Under-18s will be subject to notification requirements for half the period of time of adults, except where they have been sentenced for a detention period of 30 months or more when they will be subject to notification requirements for an indefinite period.

A child who is subject to notification requirements will be required to notify the police of his date of birth and home address. He will also be required to inform the police within three days of changes to his name or address and of when he stays for any time at another address. That information will be held on the sex offenders register. I question whether such stringent measures are an appropriate burden for children and young people. I believe that they are inappropriate. Such young people often still live with their parents or carers, are less likely to move around than adults and are often receiving multidisciplinary agency assistance and therefore stay within that network. Furthermore, only a small number of children pose a high risk to other children.

The proposed amendments address that concern by excluding under-18s from being automatically subject to notification requirements. The amendments also introduce an obligation that an assessment of the risk that the convicted juvenile poses to the public should be carried out to determine whether he should be subject to notification requirements. We are not saying, ''No, in any circumstances'', but stressing that each young person should be treated as an individual and that notification requirements should be adjusted accordingly.

I have probably covered all the points that I wanted to raise. The amendments have been tabled to discuss the broader issues around younger people. I accept that there is the grey area of someone of 17 and a half who is clearly adult in behaviour, although he is not legally an adult, and he could easily be regarded as posing a risk. The bulk of our thought was about the younger, more vulnerable children who need help and

rehabilitation. If they are acting in this way, it is often because they have been abused in some way themselves.

Dominic Grieve (Conservative, Beaconsfield)

I listened with great interest to the hon. Lady. I shall also listen with great interest to the Solicitor-General's response. I am sympathetic to the ideas behind the points that she has developed. It is clear that juveniles must be treated differently from adults in terms of their offending. I suspect that every member of the Committee will subscribe to that view.

I was slightly more puzzled about whether it is necessary to introduce the amendments to spell out that fact. I shall listen carefully to the Solicitor-General, and I was interested to hear the response of the hon. Member for Romsey to my brief intervention, but I would have thought it astonishing if any disposal and sentencing of a juvenile occurred without the steps that she wants included in the Bill. There may be circumstances in which that can be done—and we should consider closing that loophole—but it is alien to my understanding of how the court system works. Therefore, we may be worrying about something that is more theoretical than practical in its impact.

The second question is whether it is right that there should be a life imprisonment sanction at worst for juveniles who commit the most serious sexual offences. That is also the nub of the first part of the hon. Lady's argument. I reluctantly take the view that there must be. She answered her own question in raising the issue of the 17-and-a-half-year-old serial rapist. In those circumstances we must have the option of an indeterminate sentence. However, one would also assume that, because of the different regime that would apply to juveniles, the meaning of the phrase ''life imprisonment'' would operate differently. I will wait to hear from the Solicitor-General whether I am right on those matters but, on the basic question of whether society needs protection from a 17-and-a-half-year-old serial rapist by using an indeterminate sentence, I reluctantly and unfortunately think that it does. On that basis, the amendments would be counter-productive to the interests of justice.

Hilton Dawson (Labour, Lancaster and Wyre)

I do not demur at all from what the hon. Member for Beaconsfield said, but there is a great deal of sense and purpose in the amendments. I welcome the attempt to draw a distinction, not just between juveniles and adults, but between under-18s and over-18s. That is in line with the UN convention on the rights of the child and the Children Act 1989. It is vital to introduce that distinction to the sphere of criminal justice and any legislation relating to young people in trouble with the law.

This is possibly not the place for such a debate, but I firmly believe that the amendments point to the need for new legislation and definitions for youth justice and the way of sentencing young people in this country. I accept that young people who have been found guilty of extremely serious offences will be dealt with differently by courts. However, the fact remains that, in this Bill and other legislation, that intention is

not made plain and many of the arrangements that we have for young people are highly unsatisfactory.

Everyone would accept that any child—that is what we are talking about—who involves themselves in extremely serious offences clearly has problems in their own life that need to be addressed and resolved in a more constructive way than by simply sentencing them to long terms of imprisonment. We need to envisage the proper use of the care system and, in many cases, the secure care system. We may need to assess and plan to provide for young people for very long periods of their lives, well into adulthood. On the face of it, these amendments are important and point to very serious issues. I look forward to hearing the Solicitor-General's response.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I should like very much to associate myself with the comments of the hon. Member for Lancaster and Wyre. There is a big issue over which particular offences, at which age, should be dealt with through the criminal justice system. There is almost a case for questioning whether prosecution is the right route for very young children. I shall not start to talk about particular ages because there are differences, but we should ask that question for, say, a 10-year-old. Clearly, that question cannot be addressed in this Bill, but it is important to discuss the issues surrounding the treatment of children.

I endorse the comments of my hon. Friend the Member for Romsey that there is not a firm belief that the appropriate treatment is always available. That is substantiated by the fact that requests for the pre-sentencing report and its wider remit have come from a coalition of children's charities including the Children's Society, Barnardo's, the National Society for the Prevention of Cruelty to Children, the National Children's Bureau and others. The very fact that there is that wide coalition reflects the genuine concerns, and I hope that we can bear that in mind. Although it might not always be the norm to include such features in a Bill, there is such concern out there that, given that we are dealing with this difficult issue through the criminal justice system rather than through other organisations, to include more in the Bill than we would normally might be a way forward.

I have a particular case in which the parents live in my constituency, although I do not want to go into great detail about it because I have mentioned it before; the case is so distressing. Their teenager committed a minor offence with just a fine as the outcome. There was not a proper report and the ultimate outcome was that a horrendous offence was committed at the age of 19. Two families have been absolutely devastated. That highlights to me why—as I shall stress throughout our consideration of the Bill—providing treatment early enough is so important for a much wider society than the immediate victims and perpetrators. Perhaps we will come to that later. Given that often, although not always, a perpetrator has been a victim in the past, we need to address treatment for victims as well; such problems can be self-perpetuating. I hope that the Solicitor-General can point us down a route where we might look at such issues.

Finally, I shall refer to the report of the Joint Committee on Human Rights, which examined the mandatory period of notification of young sex offenders to the police. It is rather interesting because a debate goes on, and switches around, within its pages. That underlines the fact that there are concerns. The Government might take comfort, for example, from this paragraph:

''On the whole, we accept the Government's view that the package of procedures for deciding how to deal with children who commit sexual offences, taken as a whole, is capable of ensuring that children's ages and circumstances and the circumstances of their offences will be taken into account when deciding the period for which they are subject to a notification requirement.''

That might seem to answer our argument.

However, the very next paragraph goes on:

''We are not entirely satisfied that the system can be relied on to avoid disproportionate burdens on child offenders'',

and gives an example. The final conclusion suggests that there are sufficient safeguards, but I think that reading the whole analysis shows doubts. It is important to address the issue of young sex offenders to give society a firm basis for dealing with some of the terrible crimes that we witness later on. I shall be very interested in the Solicitor-General's response.

Julie Morgan (Labour, Cardiff North)

The amendments make an important point. I do not know whether it is necessary to have their provisions in the Bill, but it is important to recognise that children must be treated differently from adults. We must recognise and treat young abusers at an early age. Research shows that the small number of young abusers become the adult abusers who cause such distress in our society. It is tremendously important to recognise that at an early age, and the way to respond to that may not be by using a custodial sentence but through intensive treatment. That is not easily available at the moment, and it is currently a bit of a postcode lottery whether someone can receive that treatment. We need to recognise young sexual abusers and treat them in a specialised way that will prevent them from becoming abusers when they are adults.

Harriet Harman (Labour, Camberwell and Peckham)

The amendments are important for two reasons. First, they have shone a light on the question of children and young people and the sentencing of them that is dealt with in the Bill. Secondly, they have given us an opportunity to focus on not only framework of the law, but the difficult background of how the system can deal with people who are 17 years old one day and 18 the next.

The amendments also give us the opportunity to ask whether the framework of the law in the Bill is right in its treatment of children and young people. As my hon. Friends have said, they also give us the opportunity to remind ourselves that we are discussing not just the framework of the law, which we hope and believe that we have got right, but the continuous struggle to get the practice right and deal with the offender in each case in the best possible way.

I want to recap on the structure of amendments Nos. 1 to 6 and 8. They would introduce a reduced maximum penalty for those aged under 18 at the time of the offence on conviction for the offences of rape,

assault by penetration, sexual assault and causing a person to engage in sexual activity without consent. Those are the serious non-consensual sexual offences in this Bill. The amendments would also introduce a statutory requirement for a comprehensive assessment by a youth offending team and require the offender to be subject to the notification requirements under part 2 of the Bill only following an assessment of the risk posed to the public.

I will deal first with the principle of the amendments. As the hon. Member for Beaconsfield said, the courts already take into account the age of the defendant at the time of the offence. We must also bear in mind that they might be sentencing offenders at a different age from when they committed the offence. We are talking not only about sentencing a 17-year-old; we might be talking about sentencing a 30-year-old. The courts must consider the age of the defendant when the offence was committed when determining the appropriate sentence.

The maximum sentence set for any offence must be capable of being commensurate with the severity, including the extent of the harm caused, of the worst possible case. As the hon. Gentleman said, regrettably one must contemplate the maximum. We are not talking about a mandatory sentence, only the maximum that might have to be available in a particular case, and shorter periods are available to the courts depending on the circumstances of the case.

The offences in clauses 1, 3, 4 and 5, to which the amendments relate, are very serious offences, including forced penile penetration of the vagina, anus or mouth. Regrettably, under-18s commit such offences and some do so on more than one occasion, as was said. We must have commensurate penalties available in such cases, so we cannot accept the amendments to that aspect. The maximum sentence of life is already available for under-18s and I have asked for information on whether that sentence has been used on any occasions. In 2001, the year for which we have information—I apologise that it is only one year—no life sentences were passed. If I find out more information about the practice under the law as it stands—it allows a life sentence—I will let the Committee know.

Separate sentencing provisions for young offenders already exist and a number of specific disposals that take into account the differing needs of children are already available to the courts. However, that will be built on by the debate and action that will follow the ''Children at Risk'' Green Paper, which was brought before the House yesterday and which will consider the point made by my hon. Friend the Member for Lancaster and Wyre about the need to bring together in a coherent framework the different laws covering juvenile sentencing. We must get it right, as far as we can, in the Bill, but it might not be the end of the story and there will be debate arising out of the Green Paper.

On a technical point, the amendments propose a 15-year maximum sentence for offences of rape and assault by penetration. That does not quite fit with the fact that the maximum determinate sentence that can be passed in this country is 14 years. That is slightly anomalous, but we take the point.

The amendments also introduce a statutory requirement that offenders under 18 convicted of such offences should be subject to a pre-sentence comprehensive assessment by a youth offending team. As the hon. Member for Beaconsfield said, arrangements are already in place for pre-sentence reports to be prepared by youth offending teams. It is not clear from the amendment what additional elements might be included in the term ''comprehensive''. I am not sure that we know what that means in legislative terms. We all know what the hon. Member for Romsey is talking about and we would all agree with her, but I am not sure that we know the nature of the ''comprehensive'' legislative beast. We should not introduce a statutory requirement of comprehensiveness when it is not absolutely clear what would need to be done to meet that.

However, work is taking place to develop a strategy for children and young people who engage in sexually abusive behaviour. Last summer, an interdepartmental working group, which comprises officials from the Home Office, the Youth Justice Board, the Department of Health and the Department for Education and Skills, was set up to consider a national strategy. The interdepartmental group has identified a number of important areas that need to be developed.

There is also a lack of good, robust independent evidence about what actually works with this difficult and diverse group of young people and it is likely that we would have to pilot and assess various assessments and treatment interventions. We hope to make some progress and, albeit that we agree with the spirit of the proposal, we do not want to solidify things at a time when they are likely to be moving forward on the practical front. In advance of the work that I mentioned, it is difficult to specify what we might come to believe constitutes effective assessment and intervention in relation to this group or what introducing a statutory requirement for a comprehensive assessment would add.

The amendments also propose that young offenders convicted of such offences should be subject to the notification requirements under part 2 only following a risk assessment. Under the Bill, the young offender will automatically be subject to such requirements in the case of rape, assault by penetration or causing a person to engage in sexual activity without consent, regardless of what penalty is imposed. That is right given the serious nature of those non-consensual offences. In the case of sexual assault, the young offender would be liable for the notification requirement only if he received a sentence of 12 months or more detention. That would trigger notification. If there were a conviction

for a sexual offence and the judge passed a sentence of less than 12 months, the notification requirement would not be engaged. Under-18s will be required to register only when the offence is of such seriousness that the court imposes a 12-month sentence or more. When the court passes sentence, it will take the age of the child into account. In relation to notification, we kick back to the age of the child. As the hon. Member for Romsey has mentioned, in all but the most serious cases, under-18s will only be subject to the registration requirement for half the period applicable to an adult. That is in clause 83(2).

There are some dangerous under-18s. It is just as important for the police to know their whereabouts as it is for them to know the whereabouts of a dangerous adult. The detail of the amendment does not make it clear how the risk assessment and notification requirement relate to each other. For example, it does not make the notification requirement dependent on the outcome of the risk assessment. It merely requires that the risk assessment should have happened, and that raises some questions. Although we agree with the spirit in which the hon. Lady brought the issues to the Committee for debate, for the reasons I have given we would resist the amendments.

Sandra Gidley (Liberal Democrat, Romsey)

I thank the Minister for that very comprehensive reply, and I am pleased to hear that there is a great deal of work happening on those matters. I fully accept that the amendments are not quite right, and it is reassuring to hear that no life sentences were passed for under-18s in 2001—I was persuaded by that fact. In Committee we always tend towards the theoretical and what might be ultimately possible, but we have to take account of what happens in practice. We will review the amendments in the light of the Minister's comments and may try again on Third Reading. At present, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Humfrey Malins (Conservative, Woking)

I beg to move amendment No. 22, in

clause 1, page 1, line 14, leave out from 'conviction'

to end of line 15 and insert—

'(a) if the offence occurs during or after an acknowledged sexual relationship between the parties to a term of 5 years imprisonment.

(b) otherwise, to imprisonment for life.'.

We do not propose that the Committee votes on the amendment. It is designed to stimulate a much-needed debate on the different types of rape. I use that phrase advisedly because to many of us there are two different types of rape, both of which are equally serious, and I want the Committee to hear my thoughts on them. By introducing the amendment, I want to stimulate a discussion about sentencing and, in particular, conviction rates in rape cases.

I start with a stark example of what can and does happen. A jury is faced with a 26-year-old defendant with no previous convictions, and who is in every respect, save for the present incident, a young man of good character and behaviour. He is charged with the rape of a woman of similar age, with whom he has had an acknowledged sexual relationship in the

past. In cases of that sort, it is very difficult for the jury. They are aware that the guideline sentences for rape are severe, and they are faced with the question—

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put.

Adjourned till this day at half-past Two o'clock.

Second SittingTuesday 9 September 2003

Clause 1 - Rape

Humfrey Malins (Conservative, Woking)

Welcome to the Chair, Mr. Gale—it is good to see you. Before lunch, I was referring to amendment No. 22, which sets out two types of rape. It reflects something of an artificial approach, but I drafted it to enable a discussion to take place on the difficulties faced by courts in respect of convictions for rape.

I repeat my argument that rape is now an offence made up of a number of categories. The most straightforward and easy case for anyone to deal with is complete stranger rape. It forms a minority of rape cases, but it is more straightforward in terms of consent, the trial, and the jury's position in assessing the evidence. Other cases are not so straightforward, involving, for example, an allegation of rape either by an existing partner or by a person with whom there had been a previous sexual relationship.

I wish to set out the sort of problem that a jury might face. Let us consider a 26-year-old man with an otherwise unblemished reputation who is in work, of good character and who had had a sexual relationship with a woman of a similar age. The relationship finishes. Some months later, they meet again and drink together at a club. Perhaps after pressure from the young man, sex takes place during the evening. Let us suppose that the young man is charged with rape because the woman said that she did not consent to sex and that she was under severe pressure. The case goes before the court.

Juries find such cases very difficult to decide, as do the courts to pass sentence. One reason why there are so many acquittals in rape cases is that a jury faced with such a young man will often strain every sinew to bring in a not guilty verdict, mainly because the sentence for such a young man with no previous convictions who is involved in such a fight in the Crown court will inevitably be five years or thereabouts. They jury does not want that to happen.

Sandra Gidley (Liberal Democrat, Romsey)

I am concerned about the continual references to unblemished records and no previous convictions. Such matters are irrelevant in such cases—clearly any person who is taken to court for the first time has an unblemished record and no

previous convictions. We must try to get away from arguments about history. Will the hon. Gentleman explain why such matters are so important?

Humfrey Malins (Conservative, Woking)

With great respect, my point is a very good one. [Laughter.] I shall tell the hon. Lady why. Let us suppose that the defendant is giving evidence. Before he does so, his barrister will ask him if he has ever been in any kind of trouble before. If the answer is no, he is thus revealed as a man of previous good character. The judge, in summing up, will give the jury a specific direction as to his unblemished character and how that should be taken into account. That relevant point illustrates the difficulty faced by juries.

We all know that sexual offences, especially rape, are under-reported. One hesitates to use statistics, because they are not entirely reliable. There could be X thousand rapes reported in one year: some cases go to court in the same year, some do not go to court until the next year and some only go to court for sentencing the year after. Although year-on-year figures can never be deemed entirely accurate, they may be illustrative none the less.

The Committee will be interested to hear that in 2000–01 some 8,000 rapes were recorded by the police. Surely, that was not the total number of rapes committed. The findings of the British crime survey—a computerised self-completion survey of some 30,000 or so adults—gives a much more complete picture, because it covers unreported, and therefore unrecorded, crimes. The figures from that survey suggest that only one in seven rapes are reported to the police and thereby recorded.

Why is there so alarmingly little reporting of rape? In most cases, women are raped or sexually assaulted by men they know. Around one half of all rapes are committed by a current partner and a high proportion of rapes are committed by a previous partner. That is one factor that makes it less likely that a woman who has been raped will go to the police. In contrast, stranger rape accounts for less than 10 per cent. of all rapes.

What happens when rapes are recorded and investigated? Only 25 per cent. of the 8,000 rapes reported in 2000–01 resulted in a court case. Of the 2,000 cases that went to court only 550 or thereabouts—approximately 25 per cent.—resulted in a guilty verdict. There is something strange about that, given that the average percentage of convictions on a not guilty plea across the board in the Crown court is about 70 per cent. or a little higher. Why is the figure so low for rape?

I have already mentioned the difficulties facing juries. There is perhaps a tendency to acquit even in the face of overwhelming evidence of guilt of rape within partner-type relationships, or of rape involving people who previously had a relationship. One has only to consider the average sentence to realise that a jury takes on a huge responsibility when it produces a verdict on rape, particularly on a young man with no previous convictions. The average sentence nowadays is some six years on a guilty plea to rape, and seven years on a not guilty plea resulting in a conviction.

We must put ourselves in the position of a jury faced with a rape allegation against the kind of young man that I described and realise that its task is difficult for two reasons. First, and principally, it is difficult because the jury recognises the enormity of convicting a person with no previous convictions, who has had an acknowledged previous sexual relationship with the girl, when they know that the result after a contested case is likely to be a seven-year sentence and total ruin. I am afraid that that is a fact of life and something ought to be done about it.

Secondly, leaving aside my last point entirely, juries also have difficulty convicting because often, particularly in non-stranger rapes, there is no evidence beyond that of the man and the woman; evidentially the cases are difficult, particularly with regard to consent. That problem is made worse nowadays by the fact that young men and women—not just 17 to 19-year-olds, but people in their twenties and early thirties—engage in much more heavy binge drinking than was the case years ago. Many rapes arise from circumstances in which alcohol has had a huge influence on either or both parties. That presents an evidential difficulty because memories naturally become blurred, and sometimes what happened the night before is almost forgotten.

Why have I tabled the amendment? I believe that many juries would be more prepared to give a guilty verdict if they were of the view that a six or seven-year sentence for the defendant would not be automatic. I am not at any stage seeking to say that rape is other than a very serious offence. However, I hope that there are Committee members who will follow my argument, namely, that there is that reluctance.

Julie Morgan (Labour, Cardiff North)

Is the hon. Gentleman trying to say that rape is a less serious, more allowable crime when there is a previous or current sexual relationship?

Humfrey Malins (Conservative, Woking)

No, but the hon. Lady poses a fair question. Rape is rape and is terribly serious. I do not seek to say that one type is heinous and one is minor. Rape is a very bad crime. I simply say that most rapes that come before the courts occur in current relationships or in past relationships that have started again, and in many such cases juries are reluctant, for reasons that I hope I have explained, to bring in a guilty verdict because of the stringent sentence that follows automatically. That is the only issue and difficulty that I point out. I do not seek at any stage to try to categorise one type of rape as class A and another as class B—we all know that rape is a horrible crime. However, I wonder whether juries might be more inclined to bring in a guilty verdict if there were slightly more scope for variations in sentencing—I put it no higher than that.

Far be it from me to say that rape does not deserve an immediate custodial sentence. In principle of course it does. However we in the legal profession know that there is very little movement in sentencing on rape cases; they almost always involve a substantial custodial sentence. I put that as a problem before the Committee. We all accept that rape is frightfully

serious and a horrible offence, and we have to accept that it is grossly under-reported and that the conviction rate for rapes within relationships are very low. That is the problem; I have no answer to it.

Stephen Hesford (Labour, Wirral West)

If the hon. Gentleman's argument was left where it is, it would be difficult to have sympathy with it because, as my hon. Friend the Member for Cardiff, North (Julie Morgan) said, there would be categories of rape, and I am not sure that that would do. Some progress might be made through more imaginative sentencing on a guilty plea. An incentivising regime, marking the seriousness of the case whilst absolving the complainant from going through the court process, might address what the hon. Member for Woking (Mr. Malins) suggests is a potential difficulty.

Humfrey Malins (Conservative, Woking)

I thank the hon. Gentleman for a very constructive response. That may be a way forward. I hope that I have done my duty today by raising what I regard as a series of problems. The amendment that I tabled, which of course I will not press to the vote because it would be wrong to do so, was intended as a trigger to promote discussion about sentencing in rape cases, and the difficulties that juries have, particularly with the types of rape that I have talked about. I hope that there will be time in future for discussions on how to solve the real problem that I have identified. I have no answers, but many of us in this House know how to raise queries, so my job is done at least in part.

Sandra Gidley (Liberal Democrat, Romsey)

I have some sympathy with the case study and the general thrust of the arguments advanced by the hon. Member for Woking. However, I have a problem reconciling those arguments with the amendment because it does not reflect them. Based on the sentiments that he has expressed, if the hon. Gentleman would like to revisit the matter on Third Reading I would probably be more sympathetic.

My interpretation of amendment No. 22 is that there are occasions on which the situation could be as the hon. Gentleman describes and there is some doubt. However, there are also occasions where a relationship breaks up and one partner is very aggrieved, does not want the relationship to end and may not react in a totally rational way. On those occasions a rape may involve injury, force or significant physical harm to the woman. Surely on those occasions the sentence suggested in the amendment is not sufficient. I am glad that the amendment is not being put to the vote because I could not have supported it. There needs to be a greater link between what is proposed and the information given to back it up.

Several hon. Members rose—

Roger Gale (Conservative, North Thanet)

Order. I have now had an opportunity to study carefully all the amendments that have been debated this morning, and I have taken the Clerk's advice. My understanding is that the clause has had full and thorough debate. I think that it is fair to say to the Committee that unless I am offered a compelling reason to think otherwise, I shall be minded not to allow a stand part debate. If any hon. Member feels that something has not been already

discussed and wishes to raise it, it would be advisable to do so now.

Vera Baird (Labour, Redcar)

I, too, welcome you to the Chair, Mr. Gale. I will take the amendment in the spirit in which it is clearly intended—the hope to grope toward a solution. I always regret using the word ''grope'' in the context of sexual offences and I will not do so again. The proposal, which amounts to giving a shorter sentence for a rape that has occurred between people who have had a previous sexual relationship, has been considered by the Law Commission, the sex offences review and the Sentencing Advisory Panel during the past decade. The latter two organisations consulted on the proposal very extensively and it has been rejected. It has been considered comprehensively.

I do not accept the model proposed by the hon. Member for Woking. He suggests that juries strain at the sinews to acquit defendants because they are sympathetic to young men in that position, because much depends on the facts. The figures that he quoted are compelling, but they are not as bad as those that I had heard for 2001. In the debate in the other place, Lord Falconer stated that there were 9,008 rapes in 2001 and that there were guilty findings in 5.8 per cent. of those cases. Some 1,267 such cases went to court, which is fewer than the hon. Gentleman's figures. I do not know which figures are right.

Humfrey Malins (Conservative, Woking)

I was quoting the previous year.

Vera Baird (Labour, Redcar)

And I was quoting 2001. I suppose that we must conclude that the situation is not getting any better.

Both sets of figure make it clear that the biggest fallout occurs long before trial, because only a small percentage of cases come to court. There are, of course, many reasons for that, but I shall not repeat what the inspectors of constabulary and the inspector of the Crown Prosecution Service found in their report last Easter, namely that there were manifold failings in the way in which investigations are carried out, the support given to complainants and so on. It is a horrifying prospect to go to court, to talk in public about intimate things and to face cross-examination alleging that one wanted it all the time. A person in that position needs support, which the criminal justice system, of which my profession is part, has simply failed to provide.

The huge drop-out rate must be tackled, and a number of measures have been introduced to try to help. In truth, some of the measures to try to increase the number of cases that get to court will also increase the calibre of the prosecution. Such measures include better investigation, more support and more sexual assault referral centres, where there are expert doctors who can be quickly brought to a rape complainant and who can give supporting expert evidence that is far more compelling than that provided by a forensic medical examiner who has been called out to a police station in the middle of the night. Such measures will result not only in a higher number of people staying in the race until the end, but in a better quality of prosecution when cases come to court. We must examine such measures to improve the conviction rate.

A previous sexual relationship should not be acknowledged in a sentencing provision such as this—I appreciate that the hon. Member for Woking does not want fully to acknowledge it. A lower sentence for a rape by a former intimate would send the message that it is a lesser offence, and there is no way of getting round that. Some research suggests that rape by a former intimate is more of a blow to an individual than rape by a stranger. It has longer and more profound effects because the victim learns to distrust not only men, but herself for having engaged in the relationship in the first place.

Humfrey Malins (Conservative, Woking)

The hon. and learned Lady is right and I am wrong so far as the last part of her argument is concerned. I am not wrong in the sense that my aim is to highlight an issue, but my solution would not be appropriate. However, I am still striving for a solution, and anything that we can do to reach one would be appreciated.

Vera Baird (Labour, Redcar)

I appreciate that that is the spirit in which the amendment was drafted.

Briefly, the amendment is hopelessly impractical. It refers to an offence after an ''acknowledged sexual relationship''. How does one define an acknowledged sexual relationship? If the definition were that the woman acknowledges it, it would leave her free to dictate the defendant's sentence. If she says, ''Yes, we had a sexual relationship'', the sentence would be down to five years. If she were to deny it, the sentence would remain high. What if there was an issue about whether there had been a sexual relationship? Sometimes people have five kids and it is obvious that they have had a sexual relationship. On other occasions, the man would allege that there has been a sexual relationship in order to put himself into this category.

Humfrey Malins (Conservative, Woking)

I did my best. [Laughter.]

Vera Baird (Labour, Redcar)

The real point is that we must explain to the public that real rape is that, as well as rape by a stranger in a back alley at night. As we discussed earlier, the definition of rape will have to move on.

Beverley Hughes (Labour, Stretford and Urmston)

I completely accept that the amendment has been tabled with the best of intentions, in the belief that such a change could help to address the low rate conviction in rape cases that the hon. Member for Woking has outlined for us. That belief stems from the assumption that juries are more reluctant to convict in so-called acquaintance or date rape cases because the defendants do not fit the stereotype of the stranger rapist. His case study illustrated that very well. It is suggested that because juries know that a guilty verdict could result in a very lengthy period of imprisonment, they choose to acquit the defendant.

The thinking behind the amendment is that introducing a lower penalty, or a lesser offence, for cases in which the two parties are, or have previously been, known to each other in an acknowledged sexual relationship would encourage juries to find more defendants guilty because they could be sure that any sentence of imprisonment would be comparatively

short. The argument is that the conviction rate would therefore increase.

However, despite the hon. Gentleman's good intentions, there are some dangerous flaws in his line of argument. As he said, the cases in which people know or have known each other are very difficult for the jury. Such cases are inherently difficult. Not only am I not convinced that going down the road that he suggests would achieve the outcome that he wants, but I think that it would potentially take the jury away from grappling with that inherent difficulty and the judgment that it has to make in any individual case.

The statutory provisions that the Bill introduces on consent as a whole are designed to help juries to reach fair and just decisions in such cases. The first aspect of the hon. Gentleman's argument that concerns me is the suggestion that juries might be more likely to convict someone if there was a lower penalty, because—I cannot draw any other conclusion from his line of argument—they would apply a lower standard of proof when dealing with these apparently less serious offences. In other words, they might say, ''We are not actually sure who is telling the truth here. These people have known each other and the complainant is saying that she has been raped. We are not quite sure what the situation is, but he'll only get up to five years, so we'll go with it.''

Clearly, whether the complainant and defendant know each other, whether they have known each other, or whether they never knew each other at all, the jury must still apply the same standard of proof as in a case of stranger rape. It must be satisfied beyond reasonable doubt in cases in which people do not know each other and in those in which they do. I do not think that we can take that problem away from juries. The provisions in the Bill, including the reasonableness test, try to redress the current imbalance, which the hon. Gentleman acknowledged. However, it is inherent in the cases in which people know each other that there is a difficult decision to be made. That is one of the main reasons why I counsel against going down the route for which he argues.

A further reason relates to some of the statistics to which the hon. Gentleman referred, not so much on conviction rates as on incidence. He acknowledged that in the British crime survey—which people accept is a valid account of the incidence of different kinds of crime—only about 8 per cent. of people who say that they had been raped say that they were raped by someone who was not a current partner or whom they had never known. Therefore, if we accepted the amendment, we would be instituting a lesser offence for the vast majority of incidents affecting people who complain that they have been raped.

The amendment raises a matter of serious principle. It implies, as my hon. and learned Friend the Member for Redcar (Vera Baird) has mentioned, that being raped by somebody whom one knows or whom one has known in an acknowledged sexual relationship is less serious than being raped by a stranger or casual

acquaintance. Victim testimony—our own thinking might help us to understand—is that that simply is not true. Rapes can be different but equally serious. Being raped by somebody whom one knows or whom one has known intimately can be equally violent and traumatic. Not only does such a rape violate a person physically, but the trust, the relationship, and the judgments that have been made about the other person are shattered. Often there are also practical difficulties which do not arise with a stranger, such as avoiding future contact with that person in the course of one's daily life.

The fact that the parties are known to each other cannot automatically mean that an offence is of a less serious nature. I hope that the hon. Member for Woking will accept the points that I have put to him. We agree that the decisions are difficult, and we hope that the Bill will help juries to grapple with them slightly more easily and redress the balance. A route that implies that, if one is raped by somebody one knows or has known, it is not as serious, is wrong. None the less, I welcome the opportunity that the hon. Gentleman has given us to have the debate and to put our reasons on the record.

Humfrey Malins (Conservative, Woking)

I welcome what the Minister and the hon. and learned Member for Redcar have said. We have had a useful discussion. I do not think that the Minister or the hon. and learned Lady think that I take a view about different classes of rape. I have already made my views on the severity of the crime clear. I am glad to have identified an issue—I think that we all understand that it is an issue—and to have heard a compelling and helpful response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 3 - Assault by penetration

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 39, in

clause 3, page 2, line 6, leave out paragraph (b).

Clause 3 raises a potential difficulty, which is why I drafted amendment No. 39 for the consideration of the Committee. The clause covers assault by penetration and is linked, in terms of gravity, to clause 4, which relates to sexual assault, which is, effectively, touching. Clause 3, however, is very specific. It relates to someone intentionally penetrating

''the vagina or anus of another person . . . with a part of his body or anything else''—

an object. The clause goes on to state that an offence is committed if ''the penetration is sexual'', B ''does not consent'' to it and

''A does not reasonably believe that B consents.''

It goes on to deal with reasonableness, belief and the presumptions.

My concern is that, when one is dealing with a sexual assault by touching, it is clearly highly relevant whether there is a sexual motive for the action. It may be innocent touching, as opposed to, to use the words

of the hon. and learned Member for Redcar, a grope in a public place. However, I was a little puzzled as to why, when dealing with assault by penetration, it should be necessary for there to be a sexual element to the offence at all. After all, if someone carries out such an assault without the consent of the person concerned, that is a serious matter. It may constitute in some circumstances an offence of actual bodily harm or grievous bodily harm, but there is clearly an intention in the Bill to highlight and to deal with it as a specific offence. Why is there the need to say, in such cases, that the penetration has to be sexual?

Under clause 79, the definitions clause, we will be asking a jury to decide whether a reasonable person would consider whether the penetration was sexual. Under that clause,

''a reasonable person would consider that it is sexual because of its nature, its circumstances or the purpose of any person in relation to it, or all or some of those considerations.''

I understand exactly why that question has to be asked for clause 4, but why does it have to be asked at all for clause 3? Surely the real nub of clause 3 is that the activity takes place without, to use those old phrases, lawful authority or a reasonable excuse. If that is the case, why are we including the requirement that penetration should be considered to be sexual?

I appreciate that in the vast majority of cases that may appear to be an exercise in semantics, but seeing as we wish to show our absolute abhorrence at such activities taking place without consent, outside of medical necessity or, possibly, a lawful search—I have read the notes and appreciate the points that need to be covered—why are we requiring the jury even to consider the question at all? If we said, ''Members of the jury, you might conclude that the reasons behind this extraordinary assault had no sexual element to them at all but were mere violence'', as I read it, that jury could be faced with the bizarre circumstance of having to acquit for the offence. I therefore ask whether that definition should be in subsection (1)(b).

Under clause stand part we shall come to another point for which I have not tabled an amendment, but to which I shall return. The matter that I have raised seems to be small, but I am seeking to improve the legislation, not to put a spanner in the works in some way. Really, the motive, and motivation, of someone who thrusts an object into another person's anus or vagina seems to be entirely irrelevant if that is an unlawful act because there is not a proper reason—an excuse or a lawful authority—for doing it. In those circumstances, why is there the necessity of the jury being satisfied of a sexual motive? Of all the imponderables in life, one of the greatest is reading someone's mind or actions. That is not necessarily easy. I think that we are here giving the jury a hurdle that, in this context, is completely unnecessary.

Beverley Hughes (Labour, Stretford and Urmston)

I have some sympathy with the arguments that the hon. Gentleman has advanced. I asked many of the same questions when considering the reasons why the clause is worded as it is. The answer is partly technical. This Bill deals with sexual offences and we must ensure that the offences that we are discussing and legislating for come appropriately within the Bill's scope. That point is important,

although it is technical and does not wholly address the other points that the hon. Gentleman made, and with which I shall try to deal.

The amendment—I understand the supporting arguments—would bring all forms of non-consensual penetration within the scope of the offence. It is very difficult to imagine an offence where somebody's anus or vagina is penetrated with an object not being sexual. In discussions with officials, I was reassured that the guidance issued to the Crown Prosecution Service and the way in which the Crown Prosecution Service would apply the charges will ensure that all offences in which there is any question of sexual intent will come within the scope of this legislation.

We must go to the bounds of what is possible in our discussions, and it is conceivable that there might be a very unusual incident in which, for example, a doctor who had to examine an unconscious person digitally as a matter of urgency would become liable for the offence if the legislation were drafted in the way in which the hon. Gentleman has suggested.

Dominic Grieve (Conservative, Beaconsfield)

I accept that my amendment might have been better if, having put in a provision to delete the paragraph, I had put in something else. That is why I raised ''lawful authority'' or ''reasonable excuse''. When we consider similar wording in subsequent clauses, we will see that I have done so, and the Minister can respond to that. I accept that it would be necessary to put in something else. The sexual element troubles me. I wonder whether it is necessary to require a jury to pose itself that question.

Beverley Hughes rose—

Stephen Hesford (Labour, Wirral West)

Will my hon. Friend give way?

Beverley Hughes (Labour, Stretford and Urmston)

Certainly.

Stephen Hesford (Labour, Wirral West)

The sexual element is important in determining the gravity of the offence within the range of the Bill and the penalty that will be introduced. I would like briefly to suggest a case study. If there were a question whether a young person aged between 10 and 16 had any idea that what they were doing was a sexual activity, it would be a significant element in relation to the victim. It may be an assault—it may be a grave assault—but it should or could be looked at differently. So, the sexual nature is important.

Beverley Hughes (Labour, Stretford and Urmston)

I agree with my hon. Friend but the argument being advanced is not that we should not consider the sexual nature. If I understand the points made by Opposition Members, their argument arises from a concern that it might be possible to propose a defence that a particular action of that kind was not sexual, did not therefore come within the scope of the Bill, and may become liable to a charge under other, non-sexual, legislation, which might attract a lower penalty.

On that point, I want to reassure my hon. Friend. Where a defendant penetrates a vagina or anus with a bottle, for example, it is very likely the court will find that to have been a sexual act—even in the unlikely event that the defence might be based on the fact that the defendant intended only to cause serious harm and that they had no sexual purpose. That is a judgment that the court will make.

The concern of the hon. Member for Beaconsfield (Mr. Grieve) may be that, in the Bill, the offence of assault by penetration carries a maximum life penalty, whereas some other offences of assault—for instance, assault occasioning actual bodily harm—carry maximum penalties of five years. The maximum penalty for the offence of common assault is six months imprisonment. I understand the concern that, if a situation arose where the extent to which a particular incident was not sexual was successfully argued, it would attract one of the charges with a much lower penalty. I remind the hon. Gentleman that the offence of grievous bodily harm with intent, which could be charged in relation to a serious non-sexual penetrative offence—if such a set of circumstances existed—is also life imprisonment. There is a maximum penalty for a non-sexual offence that might involve penetration comparable to that for the offence laid out in the Bill.

Chris Bryant (Labour, Rhondda)

Might there not also be circumstances in which a doctor who regularly carries out digital examinations gained consent to a digital anal or vaginal examination from the patient, who had not consented to an examination where the doctor was clearly sexually excited? In such circumstances, the person would feel themselves to have been more profoundly abused, and the law should take that into consideration.

Beverley Hughes (Labour, Stretford and Urmston)

Certainly—exactly so. I have no difficulty in agreeing with my hon. Friend. Based on the circumstances of the case, that person would be charged under the legislation.

Any penetrative offences that were not judged to be sexual—and I qualify that statement by saying that it is difficult to conceive what they might be, although the example of my hon. Friend the Member for Wirral, West (Stephen Hesford) in relation to young people might be an example in point—are offences against the person and in such cases there is provision for charges that carry the same maximum penalty of life imprisonment as those in the Bill.

I understand the concern that is the mainspring of the amendment of the hon. Member for Beaconsfield, but between the Bill and legislation that already exists there is provision in the case of penetrative offences that are sexual—and most will be—or rare, non-sexual offences for charges to be laid that attract the same penalty. There is no need for the amendment and I ask him to withdraw it.

Dominic Grieve (Conservative, Beaconsfield)

I reassure the Minister that I do not intend to press the amendment to the vote. I raised the matter because I think that it is serious. Although the Minister has answered my queries in part, I confess that I remain slightly unpersuaded on the issue. There were some interesting contributions, and the hon. Member for Wirral, West raised an interesting point.

It is the case that there may be circumstances where someone has an apparent lawful reason to carry out penetration, but is doing it for a wholly unnecessary purpose to get sexual gratification. Of course it is

possible for someone to get sexual gratification from their professional activities while fulfilling a lawful purpose. That is something against which no legislation is going to be possible.

However, the problem could be dealt with by removing the word ''sexual'' and putting in the words ''lawful authority'' or ''reasonable excuse''. There is a number of words in the jargon of legislation that I can think of which make it quite clear that carrying out an act such as an intimate strip search would be permissible, if one had lawful authority. A reasonable excuse may be, for instance, if one were dealing with an unconscious patient and one considered that an examination had to be carried out forthwith.

It is quite possible to draft something without including the sexual element. My feeling is that the word has crept in partly because it is the Sexual Offences Bill, and partly because it is a generic description that applies to a number of different offences—in some cases absolutely properly. In the example I gave earlier in relation to clause 4, it is vital that the sexual element is a factor that should be determined by the jury.

I question the necessity of the term in clause 3. It seems that we are seeking to highlight in this offence Parliament's abhorrence and prohibition of the penetration of a person's anus or vagina without consent with an object or part of a body. The question of motive from the victim's point of view is unlikely to make very much difference, although I accept that there may be factors that can be taken into account in sentencing.

I do not wish to turn a serious topic into something comic, but I remember watching the ''Carry On'' films as a boy and I seem to remember that ''Carry On Nurse'' ends with a penetration by a daffodil—that would be unlikely to merit life imprisonment, even though it would clearly be an offence under clause 3. The courts would have to make a judgment. The reason why we have the penalty of life imprisonment is that we regard penetration as a potentially serious matter, not that such a case is of necessity going to attract life imprisonment or, for that matter, many years in prison. It will all depend on the facts.

Is it necessary for the jury to be satisfied about a sexual element? If it is, we will find that every barrister and prosecuting counsel in slightly odd cases will put down two counts on the indictment: one will be assault by penetration, resulting in life imprisonment; and the other, unless there are serious injuries, will be ABH. Why make a rod with which to beat our own back, when we are trying to spell out clearly that something is not only prohibited but regarded as a potentially serious offence?

Chris Bryant (Labour, Rhondda)

I am, as a Welsh MP, rather hesitant to stand up on the issue of daffodils.

The hon. Gentleman said that people might draw sexual gratification from any line of work, and that we cannot pass a law to prevent that. However, those people who for their work regularly have to insert things into other people's bodies should be presumed

to have a different set of criteria guaranteeing their probity.

Dominic Grieve (Conservative, Beaconsfield)

I entirely agree. The point that I was trying to make is that something might be lawfully done, but in that particular context still give somebody some sexual gratification. We can only condemn those who do things that are unnecessary, wrong or unlawful and, as I said earlier, without lawful authority or reasonable excuse. I want to prevent a jury from having to answer a question that might, in the context of what they are being asked to deal with, be unnecessary.

Beverley Hughes (Labour, Stretford and Urmston)

I realise that the hon. Gentleman is trying to bring his remarks to an end, so I shall briefly intercede. I am perfectly happy to go back and to make absolutely sure with officials that we need do nothing further on the clause. I shall bring any information back to the Committee.

Dominic Grieve (Conservative, Beaconsfield)

I am most grateful to the Minister. That is as much as I could possibly have asked for. It may well turn out that there are good, cogent reasons why we should stick to this formula. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Dominic Grieve (Conservative, Beaconsfield)

There was one other matter that was raised by Liberty but on which I did not draft an amendment. The organisation made the valid point that there appears to be a potential duplication between assault by penetration and rape. As worded, the fact that assault by penetration does not specifically exclude penetration with the penis might mean that it could be argued that a person who commits rape is also committing assault by penetration. Is that what the Government intended? If the Government wanted to spell it out clearly, it would be necessary to reword clause 3(1), which says that person A commits an offence if

''he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else''.

Beverley Hughes (Labour, Stretford and Urmston)

Where it is clear that the penis is the object with which somebody has been penetrated, a person will always be charged with rape. The two clauses were drafted as they were—clause 3 in particular—because there may be circumstances where it is not clear with what the victim was penetrated. If somebody is blindfolded, for example, there may be a reasonable assumption or a view about what happened, but it will not be clear. It is therefore important to retain the wording of the clauses to allow for that eventuality.

Hon. Members will know that non-consensual penetration of the vagina or anus with anything other than the penis is currently charged as indecent assault, which carries a maximum penalty of 10 years imprisonment. From the important, although fairly brief, discussion of the clause it is clear that all Committee members regard forceful penetration with another body part or object as extremely serious offending behaviour, which can inflict as much, if not more, pain and physical damage on a victim as penile

penetration and is likely to result in similar psychological trauma.

Clearly, the law must recognise that penetrative offences are serious. That is why we created the new offence of sexual assault by penetration. We believe that the maximum penalty for that offence should be life imprisonment—the same as for rape. The new offence will provide better redress for those who are subjected to such appalling offending behaviour. I hope that it will enable the correct targeting of more offending behaviour against children and adults and that it will be underpinned by a maximum sentence that properly reflects the gravity of the offence that is committed.

Question put and agreed to.

Clause 3 ordered to stand part of the Bill.

Clauses 4 and 5 ordered to stand part of the Bill.

Clause 76 - Presumptions about the absence of

Beverley Hughes (Labour, Stretford and Urmston)

I beg to move amendment No. 41, in

clause 76, page 36, line 36, at end insert—

'( ) any person had administered to or caused to be taken by the complainant, without the complainant's consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment No. 33, in

clause 76, page 36, line 36, at end insert—

'(f) any person was, at the time of the relevant act or immediately before it began making threats of any description against the complainant or against another person'.

Beverley Hughes (Labour, Stretford and Urmston)

I have already outlined the policy justifications for the rebuttal presumptions in the clause in my response to amendment No. 37, so I will not delay our progress by rehearsing those arguments. We aim to place in statute the circumstances in which sexual activity will not be condoned, and in relation to which the jury is entitled to presume that the complainant did not consent to the sexual activity and the defendant did not reasonably believe that the complainant consented to it. The judge will direct the jury to find the defendant guilty of a non-consensual offence where he does not raise sufficient evidence to rebut that presumption and if it is satisfied beyond reasonable doubt that the sex took place, that the circumstances existed and that the defendant knew that they existed.

We must be sure, before placing such an evidential burden on the defendant, that the circumstances in which the relevant act took place are such that they give rise to serious doubts about the ability of the complainant to exercise free choice. In short, the list of circumstances in the clause must include only those where it is reasonable to conclude that the complainant would not have consented and the defendant would not have had a reasonable belief in consent.

After a suggestion made by Lord Lucas during debates on the Bill in another place, we decided, by means of amendment No. 41, to add one more situation to the list of circumstances where a rebuttable presumption should arise. That is as follows: where a person engages in sexual activity with somebody knowing that he—the defendant—or a third person has administered a substance to the victim, or caused the victim to take a substance without consent, and, having regard to when the substance was taken, it was capable of enabling the victim to be overpowered at the time of the relevant act. The amendment complements the offence in clause 62, entitled ''Administering a substance with intent''. That covers a person who administers drugs or another substance to a victim without their consent with the intention of overpowering them, so that he or another person can engage in sexual activity involving that victim. The offence is complete once the substance is administered, before the intended sexual activity takes place.

That addition to the rebuttable presumptions list covers situations in which sexual activity has actually taken place in such circumstances. We are talking about what is referred to as drug rape. In cases of drug-assisted sexual activity, in which the victim has been drugged without their knowledge or consent, we believe that it is fair for the jury to presume that the complainant did not consent and that the defendant could not reasonably believe that she had consented.

The Government are aware that the incidence of drug-assisted rape is a cause for public concern; indeed, last night police officers argued for the inclusion of the provision. We are committed to taking whatever measures we can to strengthen the law and offer increased protection to potential victims. Adding drug rape to the list of rebuttable assumptions makes it clear in statute that such behaviour will not be tolerated. I hope that hon. Members agree and will see fit to accept the Government amendment.

Amendment No. 33 would add to the list of circumstances the case of the defendant or anyone else making any threat against the complainant or any other person either at the time of the alleged offence or immediately before it. I understand that the amendment is intended to cover any type of threat, such as threatened redundancy, burglary, or even future violence. I appreciate that the consultation document, ''Setting the Boundaries'', originally proposed fear of serious detriment as a circumstance that should give rise to a presumption about lack of consent. However, by the end of the consultation process, we decided to exclude fear of serious detriment from the list in clause 76(2) simply because the term is too imprecise and would create uncertainty in law. That is my basic problem with the amendment.

What constitutes a threat significant enough to lead to submission will vary between individuals enormously, according to their circumstances and the circumstances in which the threat is delivered. For example, the threat of loss of one's job could be

extremely serious for someone who is unskilled and dependent on a stable income to pay for urgent medical treatment or anything else that is critical, but not so serious for someone who could expect to find alternative employment readily.

The amendment might also cover threats that could take place at any time in future and which it might be within the complainant's power to prevent, either through their efforts alone, or—in the case of threatened violence—by going to the police. In addition, the amendment covers threats against any other person and potentially takes the scope of the offence outside the circumstances that could reasonably be considered to be of particular relevance to the victim. The amendment would cover a threat of any description made by anyone against another person. It is so wide that we simply cannot accept it into the list in subsection (2).

I certainly do not trivialise the concern that prompted the amendment, and I recognise that threats, whether they refer to causing harm or detriment to the victim or a member of their family, should always be taken seriously by the jury. They are important factors in determining whether the complainant consented, and whether the defendant believed in consent. However, as I have already made clear, we must ensure that the rebuttable presumptions in clause 76 are those on which we feel certain it is fair to conclude that consent was not present unless the defendant can raise sufficient evidence to the contrary.

To justify inclusion in the clause, any threat must be both realistic and immediate. It must involve the threat of immediate violence: for example, where an intruder holds a mother in one room and forces her to submit to intercourse by threatening that otherwise his partner will kill her child in another room.

Threats of an uncertain nature, made by the defendant or any other person, against the victim or anybody else at some unspecified time in the future, are too distant, too uncertain and unspecific to justify inclusion in the rebuttable presumptions list. I shall be very interested to hear Opposition Members' arguments in support of the amendment.

Vera Baird (Labour, Redcar)

My hon. Friend has emphasised that Government amendment No. 41 is intended to cover drug rape. Does she agree that it would also cover a rape in which the victim is given drink without her consent, such as the case of someone slipping, say, vodka or another spirit into the bottom of the victim's glass when she is already well on the way to being drunk, to tip her over the edge? The amendment does not mention a prohibited substance; it just says any substance, so presumably it would cover alcohol as well.

Beverley Hughes (Labour, Stretford and Urmston)

It would cover any substance administered without the consent of the individual, so that would include alcohol.

Humfrey Malins (Conservative, Woking)

The problem with a list, and whether it is to be added to, has been illustrated by the fact that the Bill left the House of Lords with a number of rebuttable presumptions set out in clause 76 and that a further one has since been added. That raises the question whether the list is intended to be exhaustive.

It is always dangerous to leave a list of circumstances when there is a possibility that something else could be added. Plainly the list, in the very good Bill that left their lordships' House, was not exhaustive because in the last hours or days the Government have thought of yet another item to add to it.

The Minister will have to accept that sometimes there are difficulties with lists. The chairman of the Criminal Bar Association said to the Home Affairs Committee that the list was legislative overkill; the question was whether such a list was necessary. He referred to what is essential in a rape case: a crystal-clear, easily understood summing-up to a jury rather than something that goes through a series of rebuttable presumptions. Most of the juries that I have been involved with would have difficulty in understanding the phrase ''a rebuttable presumption''. It would be very difficult properly to address a jury on such matters. Certainly Peter Rook, before the Home Affairs Committee, had his doubts about such a list.

Vera Baird (Labour, Redcar)

I want to take the issue further. I am not sure how the provisions would operate. The hon. Gentleman has just referred to the need for juries to understand the concept of a rebuttable presumption. Would that be the position or would the judge not have to decide in the first place whether the presumption has been rebutted? In that case, the jury would never have to consider the matter because by the time it gets to them, the burden of proof would be in the ordinary direction.

Humfrey Malins (Conservative, Woking)

I think, on reflection, that the hon. and learned Lady is right; it would be a judicial decision during the course of the trial and the jury might or might not be sent out when there is legal argument on such a point. On the basis of keeping everything in life simple, the hon. and learned Lady may agree with me that if we can keep matters simple, especially the process of summing up to juries, that would be a good thing.

The Minister dealt with my arguments about my amendment before I made them. That was kind of her. Not having heard them, she did so very well. Indeed, she probably dealt with my arguments better than she would have done had she heard them. There can be situations in which there is not just force, but threats of force. For example, let us consider serious economic threats between a divorced husband and wife, such as, ''I won't pay the school fees—unless'' or, ''I won't pay your mortgage or your rent unless you do what I want you to do.'' In many ways, such threats are worse than a punch in the teeth. Not only have they an impact on the person who is threatened with the economic problem, but they can have a nasty impact on the loved ones—the children—of the person who is being threatened.

My amendment is a further example of when such a presumption might exist, which would fit in reasonably neatly with the Bill. I drafted the amendment to illustrate that sometimes lists are not exhaustive. It was not for any other purpose. Indeed, when the list came to us from the other place, it could not have been complete given that the Government have found another presumption to add to the existing lot that are before us. I was uncertain until towards the end of

the debate whether alcohol was included in the Government's amendment because there was some discussion in the Home Affairs Committee about alcohol and getting a person drunk. The Minister has pointed out that such matters would apply to alcohol when laced drinks were involved, which is a more heinous action than simply giving someone a lot of drink.

I shall say no more about the matter. I thank the Minister for her response. We never wanted to press the amendment to a Division. I drafted it originally on the basis that lists are not always exhaustive. There may have been reasons to add to the list that emerged from the House of Lords. Indeed, I was absolutely right in that respect. It is just that the Government, when adding to the list, did not add what I said, but what they said. That proved that I was entirely right in principle, but slightly wrong in detail.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

My hon. Friend the Member for Romsey (Sandra Gidley) and I wish to place on record the fact that we strongly support Government amendment No. 41. There was an omission, but so many changes in the House of Lords have brought us to the excellent position that we have reached today.

Vera Baird (Labour, Redcar)

I wish to ask a question about clause 76(2)(e) and canvass with the Minister why it does not relate not only to the complainant's physical disability, but a mental disability.

Roger Gale (Conservative, North Thanet)

Order. The hon. and learned Lady is going down the path of a stand part debate, too. I am willing to allow that on the understanding that the Committee realises that it cannot have both debates.

Vera Baird (Labour, Redcar)

I appreciate that, Mr. Gale. I accept that my question does not relate to the debate on the amendment. You are right. Shall I wait until later to say my two words?

Roger Gale (Conservative, North Thanet)

It is entirely up to the hon. and learned Lady. As I said, I am relaxed about such matters on the understanding that we shall not have a clause stand part debate. I am willing to allow her to pursue her question if she wishes to do so.

Vera Baird (Labour, Redcar)

I simply wish to ask the Minister why mental disability was not considered to be a circumstance and did not find its way its way into clause 76(2)(e). I wish to raise again the issue referred to by the hon. Member for Woking. I had not digested the matter in quite the way that he put it. We are talking about the omission of a threat of future action. One could go to the police about a threat of future violence and that might be a good reason for not including it in the conditions. One should go to the police about such a threat. A threat of future non-payment of the mortgage would not be a criminal offence, however, and realistically, there would not be anything that a woman could do about it in the sense of having recourse to the authorities. I wonder whether there is a gap in the Bill.

Roger Gale (Conservative, North Thanet)

Having extended some freedom to the hon. and learned Member for Redcar, I feel

obliged to extend it to any other Member who wishes to comment on the clause.

Beverley Hughes (Labour, Stretford and Urmston)

I apologise to the hon. Member for Woking. I just thought that it might be helpful—notwithstanding the possibility of his having many cogent comments to make that I had not thought of—to give him a steer on my attitude to his amendment. I hope that he does not think that I took his amendment lightly in making some remarks at the start.

I take the hon. Gentleman's point about the danger of lists. He knows that the original proposal for a limited statutory list of circumstances in which it would be conclusively presumed—that was the view at that stage—that the complainant did not consent was contained in ''Setting the Boundaries'' and opened to consultation. As a result of the strong views expressed during that consultation, it was felt that it was right to have a list that made a statement and sent a message to courts and society at large about the circumstances in which we as a society will not condone sexual activity, and about the bottom-line assumptions that I referred to today when we were debating the principles.

The hon. Gentleman outlined the danger that, once there is a list, there are questions about what should be on it and how extensive it should be. Having decided in principle that it was right to have some presumptions in legislation, we have taken the approach that the list should be very limited and, building on the results of the consultation, that we should have a list of rebuttable presumptions so that, even in those circumstances, if the defendant could adduce sufficient evidence to convince the judge that there was an issue about consent, there would be a possibility of his having that issue incorporated into the trial.

We know that putting presumptions of any kind into legislation is a serious matter. We have tried to strike a balance when using the presumptions to make that important statement—the consensus was that, on balance, that was a good thing to do—and when framing the conclusive and rebuttable presumptions. The rebuttable presumptions enable the defendant to make a case or try to make a case. We have tried to strike a balance between making the statement and the interests of complainants and defendants. Even though we have presumptions, the concern is obviously framing those provisions in a way that does not compromise the principle that somebody is innocent until proven guilty.

On the question asked by my hon. and learned Friend the Member for Redcar about mental inability, the main point about subsection (2)(e) is that the complainant has a physical disability as a result of which she would not have been able, at the time of the relevant act, to communicate to the defendant whether she consented. For other kinds of disability, the court must take into account as a matter of judgment whether that disability impeded communication; but where someone is physically unable to speak, we argue that unless the defendant can adduce evidence to the contrary, it will be presumed that that person could not have consented because of their literal inability to

communicate. Other disabilities are more open to interpretation and judgment.

As you are not allowing a clause stand part debate, Mr. Gale, I shall sum up briefly. We have thoroughly debated, now and previously, the principles and the detail of clause 76. I commend the clause as we propose to amend it to the Committee.

Amendment agreed to.

Clause 76, as amended, ordered to stand part of the Bill.

Clause 77 - Conclusive presumptions about consent

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 38, in

clause 77, page 37, line 6, leave out paragraph (b).

I had the opportunity of discussing the amendment briefly with the Solicitor-General before we broke for lunch. When I first looked at clause 77 it struck me as being perfectly straightforward, correct and, if I may use the word, innocuous in its scope. The Solicitor-General confirmed to me before lunch that the conclusive presumptions about consent incorporated in the clause have a long history. They are not a recent invention, but have been around for some time, especially where the defendant

''intentionally deceived the complainant as to the nature or purpose of the relevant act'',

and where

''the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.''

My first reaction was that that was all completely in order. However, when I came to think about it last night, I began to wonder whether it was correct for us to have the conclusive presumption in subsection 2(b), that

''the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.''

In most cases, I would consider that it is correct to have that provision. If someone goes into a bedroom and pretends to be a woman's husband, thereby having sexual intercourse with her when she certainly had no intention of having sexual intercourse with that person, I can easily see that a conclusive presumption makes sense. However, as I explained before lunch, I wonder whether—it may be that I am becoming too fanciful—changes in social mores, quite apart from anything else, could easily bring about circumstances in which someone might believe that they had the consent of the complainant to deceive her as to the identity of the person with whom she was having sexual intercourse.

I gave the following example to the Solicitor-General. It is not something of which I approve, but a group of young people might decide to have a weekend in a country house for what I would describe as an orgy—I think that the Solicitor-General informally described such people as swingers. In the course of that event, it is agreed that there will be sexual intercourse between all the parties in the house. There is general consent by the parties to that

happening, which can of course be withdrawn. However, because the people are going around impersonating each other, a situation could occur—we have to take account of the possibility of misleading cases, as I long ago discovered—where a person misleads the complainant by impersonating another person in the belief that they had the permission of the complainant so to mislead them.

All I want to know, which was the question that I explained before lunch, is whether in those circumstances there would be, as I would think that there would, a conclusive presumption of guilt—which is what it amounts to—and of rape having taken place. That raises the question whether there should be a conclusive presumption or a rebuttable presumption. That is the issue.

I apologise if the point appears totally fanciful, but unless the Committee is prepared to examine the fanciful possibilities that exist in the modern world, we will probably not do this important legislation justice. I await what the Solicitor-General has to say with interest, if not with bated breath.

Harriet Harman (Labour, Camberwell and Peckham)

I thank the hon. Gentleman for giving me notice of this scenario before lunch. In introducing the amendment, he said that he had begun by feeling perfectly comfortable about paragraph (b), but had grown more and more anxious and now wants it to be struck out. I started off by feeling very uncomfortable about it, but I have felt more comfortable as I have looked into it.

As my hon. Friend the Minister of State said, we all worry about rebuttable presumptions because of the fear that they interfere with the principle that one is innocent until proved guilty. A rebuttable presumption may let the prison door clang shut, but at least the defendant will have had the chance to rebut it. We should be very concerned about conclusive presumptions because they cannot be rebutted. We know that rape and other sexual offences are taken more seriously by the courts than they used to be. Indeed, the starting point in Milberry for a rape with no aggravating features is five years imprisonment.

We are right to examine carefully the clauses that bring in conclusive presumptions. The framework of the Bill, which is admirable in all other respects, makes the conclusive presumption look worse than it is. The conclusive presumption does not require the prosecution to prove the same thing twice, which the prosecution would have to do if the conclusive presumption were not included.

I ask the hon. Gentleman carefully to examine the connectedness between ''intentionally'', ''induced'' and ''impersonating''. If all three things are shown, the woman in the witness box should not have to show that she did not consent because there would have been an intentional induction by impersonation. The measure is based on the old offence of obtaining sexual intercourse by fraud. If one considers the provision as such a separate offence, the absence of consent in fraud cases has been proved, and one feels comfortable about it. The structure of the Bill exists for very good

reasons, but it looks a bit odd at this point, which concerns people.

Let me remind the hon. Gentleman of the background. The statutory origin is 1956—the case of Barrow dates back even further, to 1868, but I shall not go into it. Section (1)(3) of the Sexual Offences Act 1956 provides that a man commits a rape if he induces a married woman to have sexual intercourse with him by impersonating her husband. That is more or less what we have in the Bill, in the form of a conclusive presumption.

In the Bill, we have extended the offence to cover relationships outside marriage, making it gender neutral, and extended it to cover all types of sexual activity. In the past it applied only to rape involving sexual intercourse, and not to indecent assault. We have modernised that old-fashioned, long-standing offence.

We have done that through clause 77(2)(b), which provides for the conclusive presumption that the complainant did not consent to the relevant act and that the defendant did not believe that the complainant consented to the relevant act if it is proved. The prosecution has to prove that the defendant ''intentionally induced'' the complainant to consent to the relevant act

''by impersonating a person known personally to the complainant.''

In relation to your party of swingers, where people are all dressing up and pretending—

Roger Gale (Conservative, North Thanet)

Order. It is certainly not my party of swingers.

Harriet Harman (Labour, Camberwell and Peckham)

I beg your pardon, Mr. Gale.

Roger Gale (Conservative, North Thanet)

Friends on both sides of the House would regard the oldest swinger in town as being something completely different.

Harriet Harman (Labour, Camberwell and Peckham)

I apologise, Mr. Gale. In the example that the hon. Member for Beaconsfield gave, there is impersonation, but it is just what is happening—the impersonation is not taking place intentionally to induce. The prosecution would not be able to prove that in order to reach the next point. We do not need to show that there was no consent in addition to that because we have the conclusive presumption. We do not want the prosecution to have to double back over territory it has effectively gone past. It would not get past that territory in the case of the hon. Gentleman's example.

Amendment No. 38 would remove clause 77(2)(b) and reduce the protection of victims by offering them less protection than they have under existing law. We all remember two particular sets of circumstances. In one case, a music teacher deceived a pupil by saying that if she did this it would make her singing voice better. That was deception concerning the nature of the act of sexual intercourse. The second type of deception concerns who the person is. We want to keep that in the Bill, and I ask the hon. Gentleman not to press his amendment to a vote.

When the facts can be proved in such circumstances, we surely must agree that the

complainant did not give their consent to intercourse or to engaging in sexual activity with a person if they were tricked by impersonation because they were not making an informed choice. Nor can there be doubt that any claim by the defendant to believe in consent would be fatuous because the elements of the offence are the deception that they practised by virtue of impersonation, which the prosecution would be required to prove. It is hard to see why the complainant should thereafter be subjected to cross-examination, such as, ''This person was impersonating your husband, but even if you hadn't realised that this person was not your husband, you'd have wanted it with him anyway.'' That is the danger. One would end up with the allegation that the person was consenting to sex even though a person was impersonating their husband.

Given the rebuttable presumptions in clause 76, there is significant merit in sending a clear signal in statute about the circumstances in which sexual activity will not be tolerated and where the perpetrator can expect to be found guilty of a non-consensual offence. We have to remember the context when we are thinking of getting rid of existing protections. At the same time, we have to keep in mind the innocent person who might be found guilty under badly framed law. We do not want that to happen.

We also have to remember the context mentioned by my hon. and learned Friend the Member for Redcar, which is that of all serious offences, rape is least likely, after reporting, to get to the point of prosecution and, after it gets to prosecution, is least likely to reach the point of conviction. We have to be careful about doing anything that takes away legal protection from the victim. We all recognise that, despite increasing efforts by the police, the prosecution and the courts to enable people to bring their case to court where there is an allegation of rape, it is in this area of offences that the justice gap, as it is called, is widest and public and victims' confidence is most tenuous.

With that in mind, I asked police and prosecutors whether they had had any such cases. Like the hon. Member for Beaconsfield I have tried to work out the sort of scenario in which one could imagine it necessary to keep such a conclusive presumption in the Bill. Bearing in mind the concerns that the hon. Gentleman has raised, why do we not just chuck it out? If we did not think that we needed the provision, why bother arguing against the amendment?

As other hon. Members have done, I commend Operation Sapphire on the presentation that it made available to Committee members last night. Operation Sapphire says that it has had two recent cases involving this kind of act and that it wants to keep the provision. It sees more scenarios than we could ever dream up, and it does not want to lose what it thinks might be a useful piece of legislation.

Whenever there is a rebuttable presumption, we should test it incredibly carefully; whenever there is a conclusive presumption, we should presume against it

until it has been proved to be necessary. I have travelled the same thought-process journey as the hon. Gentleman and I am confident in saying to him and to the Committee that we should keep paragraph (b).

Dominic Grieve (Conservative, Beaconsfield)

I am most grateful to the Solicitor-General for her comments. She has persuaded me. As this discussion has taken place, it has become apparent to me that in the rather odd circumstances that I put forward as a theoretical possibility the defendant would be able to rely on the fact that consent had existed all along and had not been induced by impersonation, so he would not fall foul of the conclusive presumption. I have nothing against conclusive presumptions in circumstances of this type, or against their history. Perhaps I was looking at the Bill too late at night, but it suddenly struck me that the conclusive presumption might have draconian and unintended consequences. I am grateful to the Solicitor-General for reassuring me on that and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 77 ordered to stand part of the Bill.

Clause 78 ordered to stand part of the Bill.

Clause 2 - Anonymity of defendant in rape etc. cases

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 23, in

clause 2, page 1, line 17, leave out from 'enjoy' to end of line 18 and insert

'a right to anonymity, from initial accusation to conviction, unless at any time between charge and conclusion of the trial a circuit judge directs otherwise.'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

Amendment No. 24, in

clause 2, page 1, line 17, leave out from 'enjoy' to end of line 18 and insert

'a right to anonymity until charged.'.

New clause 1—Anonymity of suspects and defendants in certain cases—

'(1) Where an allegation has been made that a person has committed an offence listed in Schedule 3 to the Sex Offenders Act 1997, no matter relating to that person shall be included in any publication if it is likely to lead members of the public to identify that person as the person who is alleged to have committed the offence, until and if that person is charged.

(2) If any matter is published or included in a relevant programme in contravention of subsection (1), the following persons, namely—

(a) in the case of a publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) in the case of any other publication, the person who publishes it; and

(c) in the case of matter included in a relevant programme, any body corporate which is engaged in providing the service in which the programme is included and any person having functions in relation to the programme corresponding to those of an editor of a newspaper,

shall be guilty of an offence.'.

Dominic Grieve (Conservative, Beaconsfield)

We now come to a section of the Bill that we understand to be contentious. It is the Government's intention, as I understand it, to

remove clause 2 and argue that it should not stand part of the Bill. There has been much discussion and debate—this seems to have been almost the principal topic of the debate foreshadowing this House's consideration of the Bill—on whether there should be anonymity for defendants in rape cases and what the scope and duration of that anonymity should be. Should it be simply for the duration of the charge or last throughout the trial? If there is such an intention, how should the legislation be drafted? The drafting is by no means free of complexity. The House of Lords—following Lord Ackner's suggestion, I believe—inserted clause 2 in what I acknowledge to be a somewhat simplified form. No doubt it was designed to alert the Government to their lordships' concern about the matter and to invite the Government to come up with proposals of their own.

In considering the clause, we must go back to principles. Over the past few weeks, I have discussed some of the issues with Committee members, and I say at the outset that this is not a matter that I find at all easy. The basic principles I find very easy indeed: it is desirable that all aspects of the criminal justice system should take place publicly, which means that defendants and witnesses are publicly identified throughout the court process. As much of the court process as is possible should be open to public scrutiny, as that reassures the public that what they are seeing is prosecution, not persecution, and that things are taking place in a fair manner.

However, we know from example that it is not always possible or indeed desirable to try to achieve that. We know, for instance, that there might be cases involving state security where some of the evidence cannot be given in public, but it is nevertheless in the public interest that there should be a prosecution. Sometimes, the identity of witnesses needs to be protected because they are at great risk either in their work or of being attacked if their identity and place of residence is made known.

In rape cases, we have taken matters a stage further. It is widely acknowledged that the trauma of giving evidence in court is such that it is difficult to persuade victims or alleged victims of rape to come and give evidence about serious criminal offences. Therefore, notwithstanding the basic rule that I have just spelled out, it is in the public interest that such people should enjoy anonymity in almost all circumstances. I do not suppose that anybody on the Committee would want that principle reversed; it was introduced some time ago and it appears to be essential if this serious type of case is ever to get to court.

I shall move on to remarks about the position of defendants. I am aware from having read the House of Lords Hansard that some argue that, in view of the fact that complainants have anonymity in rape trials, it is only fair that the defendant should have anonymity in those trials. I do not agree with that, but I understand the force of the argument, and I suspect if one went outside the House and spoke to members of the public, one would meet people who argued that view forcefully. I do not take that view because I acknowledge, for the reasons that I gave a few minutes ago, that such equivalence cannot always be achieved.

We do not say that somebody who is tried under the Official Secrets Act must have anonymity simply because some of the witnesses in the trial who come forward to give evidence have anonymity.

That issue focuses my mind on the peculiar problems that rape allegations pose, which appear to fall into several categories. First and foremost, we know that rape allegations have the unique and unfortunate distinction of having an astonishingly low conviction rate—I can think of few other offences that come into that category, although there may be one other. All sorts of reasons can be adduced for that, and we have argued them. There are anxieties that it reflects the fact that many guilty people are getting off, and it is argued that the rules and tests of evidence should be changed—indeed, we are in part doing that in the Bill. As I have said, I am not sure that that will make a huge difference, but I hope that it makes a positive contribution to securing justice in rape trials.

Nevertheless, we must face the fact that the vast majority of people who have an allegation of rape brought against them are acquitted, as a result of societal changes in the nature of the allegations; as has been highlighted, rapes now overwhelmingly concern not a stranger but parties who are acquainted. Having been acquitted, they are entitled to all the benefits of that acquittal, including, if they do not have other convictions, being regarded as being of good character, and being able to get on with their life.

However, the reality is that many who have been acquitted have their life ruined by such allegations, and in a very few cases, it transpires that the allegations were made maliciously. We face a great problem. That highlights the question whether it would be in the public interest and the interests of justice in such circumstances for defendants in rape trials to have anonymity. In that case, we would have to ask for how long and in what circumstances that would be so, and what exceptions there might be.

It is worth remembering that there was a period of 12 or perhaps 11 years—I can never remember the precise dates on which legislation came on or off the statute book—when defendants in rape trials did enjoy anonymity. It overlapped only slightly with my period at the Bar, but certainly in my first few years—

Humfrey Malins (Conservative, Woking)

It was 1976 to 1988.

Dominic Grieve (Conservative, Beaconsfield)

That, indeed, is what I recollect. My only reason for not being specific was that I wondered whether the Act was on the statute book for some months before it was implemented.

I remember seeing rape trials taking place in my early years at the Bar in the 1980s. I certainly was not conscious that there was a great impediment to justice in granting anonymity to rape defendants—until, of course, they were convicted, when, naturally, their anonymity disappeared.

It has been suggested that there may be cases in which anonymity seriously hampers police investigations, because it prevents an opportunity for other people to come forward, as they will not have heard that the defendant is standing trial. I accept that

that may sometimes happen. That is why I also always accepted that there must be exceptions to anonymity rules when the interests of justice require it. Another example is that of a defendant who does not surrender to bail and goes on the run. It is easy to see that in those circumstances his anonymity should be forfeited for the sake of ensuring his early arrest.

I strongly feel that there are powerful arguments—and they certainly seem to have registered outside the House among the public—as to why defendants should have anonymity. There are then arguments about how long they should have anonymity for. Because of the way that the Bill has come to us from the House of Lords, we are really talking about anonymity between charge and conviction or acquittal.

There are arguments—I gather that the Home Secretary is taking an interest in the matter—that the principal mischief lies not in the trial process, but in the period prior to charge, and I do not think that that period would be covered by the Bill. Perhaps the Committee should consider that, although drafting such legislation could be difficult. I have heard it suggested that the Home Secretary wishes to come up with a formula by which the police agree not to tip off journalists about investigations of individuals suspected of sex offences.

I have no idea whether that approach would be successful or not, but I am not optimistic. I am afraid that there is a long history of the police tipping off journalists—often, I suspect, for reward. It is a scandalous situation, but one that I believe is very difficult to control. The only way to exercise such control would be to restrict publication; the reality with anonymity in any case is that there will always be people involved in the case or close to it, or relatives or neighbours, who know very well that a person is about to stand charge for a rape allegation. That certainly happened in the 1980s; anyone sitting in court would have been likely to find out. However, the absence of publicity was certainly very helpful in enabling someone who had been acquitted to rebuild his life.

While I understand that the Government are unsympathetic to the Lords amendment and wish to delete it, for my part I am broadly somewhat sympathetic to it and would like to see whether there is some way by which the spirit or intention of the clause could be retained.

There are two ways in which that could be done. The first is amendment No. 23 and the second is amendment No. 24. Amendment No. 23 would retain

''a right to anonymity, from initial accusation to conviction''—

so the anonymity would apply beyond charge—

''unless at any time between charge and conclusion of the trial a circuit judge directs otherwise.''

That would make allowance for the exceptions, which I fully acknowledge might arise, either because of a defendant's behaviour—running away, failing to surrender to bail—or because the prosecutor could go to the judge and say, ''This is a very unusual case. We are satisfied that at least four people have now

made allegations against the defendant. We believe that publicity, because of the nature of his offences, might well attract more. It is an unfortunate matter, but could we please be allowed to reveal his identity?'' I would be perfectly prepared for a judge to perform such a balancing exercise.

The second amendment, amendment No. 24, is an alternative. The intention is that it might provide—although I suspect that because of the way it is drafted it would not provide—the possibility of having anonymity between the time that the investigation commences and an allegation is made, and charge.

I look forward to hearing not only the Government's position on clause 2, but their position on anonymity generally. At the moment, the amendments have been put forward in, I hope, a conciliatory spirit and I hope that the Committee will be able to grapple with them. It is a very important topic.

If we get no joy from the Government on the issue, we may be minded to resist the deletion of clause 2, because it is an issue of great importance. However, I am also willing to listen carefully to what the Minister has to say, and to other Committee members who have arguments to the contrary. I am already well versed in such arguments; I have had an interesting e-mail correspondence with the hon. and learned Member for Redcar, which was published in somewhat truncated form in The Guardian. The arguments that she put forward are valid; I make no attack on their validity. Equally, however, I believe that there are arguments to the contrary.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I hope, Mr. Gale, that it is in order for me to address new clause 1 first.

Roger Gale (Conservative, North Thanet)

Order. Absolutely, but the two amendments and new clause 1 have all been taken care of.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I did not want to incur your wrath, so I thought, Mr. Gale, that I had better check first.

Clause 2 is unsatisfactory, but we still wish to address the question of anonymity. We found that it was difficult to table appropriate amendments. Our preference is for new clause 1 to replace clause 2. We have reached that position by examining all those arguments—one listens along one route and it sounds very convincing, and then one listens along the other route. There is a balance to the arguments but the balance tips in favour of anonymity up to the point of charge. That is the point that we want to make comprehensively.

With its reference to ''rape etc.'', clause 2 has a fundamental weakness, whereas our amendment covers the whole range of sexual offences. Once one gets into the realm of sexual offences against children, there is considerable support among a range of bodies and people for anonymity up to the point of charge. For that reason, we hope that the Government take on board the spirit of our new clause on Report.

We have deliberately referred to publication, and the position of the press and the media. We understand that one problem with the previous

legislation on anonymity was that the police felt constrained and not always able to pursue all their investigations. That is another point that could be used for the argument on the other side. The more positive argument on that side is the need for names to be publicised so that other victims come forward. That is far more pertinent after the point of charge, and it is fairer than allowing someone to be judged by the media before they have been charged with an offence.

That approach allows the police to pursue their inquiries. It could be amended further to allow a special court application for the lifting of reporting restrictions if, as in an example that was mentioned yesterday, it is feared that someone dangerous has absconded. Equally, the clause could be extended to include special circumstances and a special application for anonymity beyond the point of charge as determined by a judge. We have made the new clause as simple as we can in the hope that the Government will respond to our points.

There is considerable sympathy across the board. The Minister has said that he has been in discussions to obtain voluntary agreements, so there is a strong desire to achieve anonymity before charge in many cases.

Julie Kirkbride (Conservative, Bromsgrove)

Maybe I am missing something, but it seems that to do as the hon. Lady suggests and give anonymity before charge ends up with the worst of all worlds. Reporting restrictions before someone has been charged are such that the press can barely say anything other than that someone is being investigated for an offence or has been arrested in connection with an offence. A very limited amount can be said about that person's potential criminal offence. The big problem is the embarrassment factor that causes upset to people when the court case goes into great detail. At the same time, because there is anonymity, other people who may have been raped by that person will not know to come forward because they will not know that the person is being charged with that offence. Therefore, anonymity would inhibit the police's ability to gain evidence to secure an ultimate conviction. I should be grateful for an explanation of why I am wrong in those respects.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I thank the hon. Lady for her intervention, but I am not quite sure where it leads. If the Conservative Front Bench were to push for a vote in relation to amendment No. 24, which calls for anonymity up to the point of charge—merely in relation to ''rape etc.''—at this stage we would support that, simply because we want to put a marker down to show that we support the approach, if not the exact wording.

There are many valid arguments and we are striking a balance between the pros and cons along the line. One of the cons of allowing full reporting pre-charge is that an innocent person can have their life destroyed, and that is not usually the presumption of British justice. The Metropolitan police service presentation showed that the police are particularly concerned with situations involving sexual offences against children because of the potential public reaction, even when a charge has not been laid.

The downside of any anonymity is the argument, which I know that other Members will put, that it inhibits other people from coming forward. That is why, at this stage, we do not support amendment No. 23 from the Conservative Front Bench. We are looking for a balance. I hope that that answers the hon. Lady's questions.

I want to emphasise that the Liberal Democrats think that it is wrong to delete the clause and have nothing in its place. We must take into account the power of the media, the state of today's society, the fear and the way in which innocent people can be persecuted and may even have to assume new identities, with no chance of being acquitted and showing that they are totally innocent either. Sexual offences in particular affect future life chances in relation to jobs. I accept that there is still an argument about whether there should be anonymity up to the point of charge for all offences. Again, we are talking about balance all the time, and that is why we would prefer to stick at the point of charge and make that starting point.

Chris Bryant (Labour, Rhondda)

Earlier this year, the Select Committee on Culture, Media and Sport produced a report on privacy and media intrusion. Time and again, it found that the police play a wholly counter-productive role in the process—as the hon. Lady will acknowledge. It is somewhat uncertain exactly what law they are breaking, although they might be breaking their own terms and conditions of employment. The police will frequently announce to the media that they are going to visit, for instance, Matthew Kelly and the media will be there in an enormous scrum. However, I do not see that the answer lies in the prescription that the hon. Lady suggests. Can she suggest other ways in which we might move forward?

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I accept that we need to debate the issue fully. I have had more reassurances in terms of the talks that have been progressing with the police and the Association of Chief Police Officers on discipline. The police sometimes need to use the media to help, in which case we could just make the appropriate amendment, and they need not be inhibited by fear of coming up against legislation. However, the point must be made really clear in their terms and conditions and in relation to their professional conduct. I feel that the Government are working towards that and I hope the Minister will tell us more. I certainly read in the press that the police themselves could be bringing in stronger disciplinary measures. In the Matthew Kelly case, I believe that the tip-off came from a potential victim's family and not the police. That goes to show that we should not place all the emphasis on tackling the police. Our media restriction would tackle the matter. Sometimes, in very sad circumstances, even the family—amazingly—will sell a story. At one point, I had the sad situation of having the youngest father in England living in my constituency. I heard that it was the family who sold the story to the press, which is staggering. We must look beyond the police. Voluntary discussions with the media and the police will never be enough because of that other link. As far as the media are concerned, it is

so much better if a voluntary agreement can be achieved, but if there is a good story that will mean high sales and a real coup, will a voluntary agreement ever hold for 100 per cent. of cases? High-profile cases may make us think that we have to do something, but meanwhile someone else's life may have been destroyed. I have read somewhere about the ''stand back and give it a try'' argument for voluntary agreements, and that is quite seductive. However, the problem is that someone might be severely damaged before that.

Another possibility is to include in the Bill a fallback position similar to that which we are proposing, should voluntary agreements not have enough teeth. However, that is not my preference. If amendment No. 24 were pressed to a vote, we would support it because the amendment supports the principles for which we are arguing.

Humfrey Malins (Conservative, Woking)

This is, I suspect, the most important debate that we shall have today and it is on a vexed subject indeed. We all have to acknowledge the basic principle that our criminal justice system operates, and has always operated, on a principle of openness. That is as it should be.

I want to try to address a really nasty mischief that troubles us all. What is it that makes us angry, and what problem are we trying to address? It is this: the case of a person who has not been charged with a criminal offence but who has been taken in for questioning by the police, a fact which, as well as many other surrounding allegations, is publicly printed in the media before the person is charged; and who is never charged because there is no evidence to substantiate a charge. That person's name is mud from then on—mud sticks.

When I read in the paper that X has been charged with an offence, I do not feel the same anger at reading it. When I read that someone has been convicted of an offence, I do not feel the same anger. I feel desperately angry when I read that someone has been taken in for questioning, and then read over a period of two or three months various salacious articles about what might or might not have happened, even though the person is never eventually charged. They are as innocent as anyone on this Committee, but their reputation is blacker. I do not like that situation one bit. That is the real mischief that angers me.

We all know examples. A few years ago, a Member of the European Parliament known to me was at Heathrow airport when he was found to have in his possession a very small amount of a low-level drug and a magazine—not a happy magazine. I think that that was the case. I will tread carefully when I tell the story but I think that I am right and that that is what happened. The next day it was all over the press. How did it get there? Did Customs ring the press and say, ''Guess what? We've got a celebrity and something to be said against them. Would you like the story''? Was it the police? Let us work on the basis that it was not the man himself who rang the press. It follows, as night follows day, that it was one of those other bodies. It is a really scandalous thing to happen.

Chris Bryant (Labour, Rhondda)

It is indeed scandalous, and what is also scandalous is that many of the national tabloid newspapers have a standing arrangement whereby they will provide money in exchange for information of such a kind, as has been admitted before the Select Committee on Culture, Media and Sport. Knowing how to deal with that is, however, much more difficult.

Humfrey Malins (Conservative, Woking)

I suspected that money might have changed hands. The hon. Gentleman has heard evidence to that effect, and can confirm my suspicion. I regard that sort of activity by anyone in authority, whether a member of Customs or the police, as so disgraceful that if I, personally, had such a person before me on a criminal charge of having acted in such a way, I would have little hesitation in giving out a condign custodial sentence straight away. It is an absolutely wicked thing to do.

Incidentally, I think that the Member of the European Parliament in question—I am sure I will be corrected if I am wrong—was never charged with anything: a career ruined for a wonderful story over a couple of days. We know about other cases, some including former hon. Members, as well as many others who I do not think have been charged with anything, but the tabloids have run the stories. It is a mischief that must be addressed harshly. If anyone thinks that voluntary codes of practice work, I have never known one to. If anyone thinks that anything other than the heavy hand—by which I mean the heavy hand in a big way—will work, I think that they are in cloud cuckoo land.

Sandra Gidley (Liberal Democrat, Romsey)

I have been listening to the hon. Gentleman with some interest, and I have great sympathy with his arguments. Will he also accept that it is not just the celebrity that suffers? A case has recently received a lot of attention in my local media. A schoolteacher was accused by a young boy of certain acts, and that was heavily reported. The schoolteacher, a headmaster, has now disappeared, and no one knows where he is. That sort of thing puts an intolerable burden and strain on families. The teacher—if he has not committed suicide, which is the fear—will never be able to teach again. It is not just the high-profile cases that we must be concerned about, but all cases, particularly when people work with children, as children these days are very aware of how they can cause maximum damage to other people's lives.

Humfrey Malins (Conservative, Woking)

The hon. Lady refers to an interesting case, and is quite right. It is not just celebrities who are affected. I was going to refer—I wonder whether it is the same case—to something I read the other day. A head teacher had, I think, killed himself facing that sort of charge. I pause to add that a schoolteacher whom I knew at my old school, and my son's school, was lifted by the police six or seven years ago on suspicion caused by some videos. He was a wonderful man in many ways. He never lived to be charged. That is the area in which I think there is the real mischief.

Where do we have problems? We have big problems, because if I propose anonymity for a defendant, under what offences do I think that a defendant needs to be anonymous until charged? Such scenarios are difficult. Many allegations, if made against you, Mr. Gale, me or any of us in

Committee, could be frightfully damaging to us. Let us assume that I am a defendant in a rape case. It would be nice if I were anonymous until I was charged or convicted. How would I feel if I were taken in for questioning on charges of indecent assault on a child or an adult? How would I feel if I were taken in for questioning about paedophile offences? How would I feel if I were taken in for questioning about computer pornography? ''Am I limiting myself'', I ask rhetorically, ''to allegations of a sexual nature?'' I ask the Committee whether that is the real mischief. Do I deserve some anonymity in relation to any or all of those offences, or none?

Would I be similarly ashamed about the stigma and the mud sticks argument? Would I be badly placed if I were taken in for murder or for the armed robbery of an old lady? I do not know the answers to such questions, but they are fair questions to ask. I am asking them of myself because I do not have to answer them.

Chris Bryant (Labour, Rhondda)

In which case, I may as well ask the hon. Gentleman an explicit question. Clearly, the amendments suggest that such matters should apply only to one specific set of criteria, not the whole of criminal law.

Humfrey Malins (Conservative, Woking)

I shall put my answer in brackets, given that people in certain positions in society may be hit more heavily by an allegation—whether or not charged—than others in society. My best answer to the hon. Gentleman is that, for the purpose of my argument, I must limit the issue to rape, although I recognise that the problem area is wide.

I refer to the critical mischief, which is caused by the revelation before being charged that I have been taken in for questioning, and the evil of the publicity of such action. The whole issue of anonymity has changed over the years. In 1976, there was anonymity for the defendant in rape cases. Section 6 of the Sexual Offences (Amendment) Act 1976 states:

''After a person is accused of a rape offence no matter likely to lead members of the public to identify him as the person against whom the accusation is made shall either be published in England and Wales in a written publication available to the public or be broadcast in England and Wales except . . . as authorised by a direction'',

or after the person has been convicted. That was the law in 1976. I suppose that the idea was to provide a level playing field between complainants and defendants, and to ensure that the accused did not have to suffer the social stigma that can arise from an allegation of rape. After the ghastly Morgan case, Mrs. Justice Heilbron recommended that complainants should also be anonymous. Part of her reason for that action was to encourage more complainants to come forward in rape cases. Whether that has happened, I do not know. I doubt it.

The other reason to recommend anonymity for complainants was the stigma that was caused. In effect, a level playing field was created for the defendant and the complainant. It was abolished in 1988, because Parliament decided that the defendant in rape cases should not be treated differently from any other defendant in a criminal case. Parliamentary

moods change every 10 or 15 years depending on what is going on in the society in which we live. When the anonymity rule was abolished for defendants, it was felt that a not guilty verdict should be fine to acquit a person of the stigma.

In conclusion I ask, are the current rules satisfactory? No, they are not; they are wholly unsatisfactory.

Hilton Dawson (Labour, Lancaster and Wyre)

Does the hon. Gentleman agree that, far from convincing the Committee, he seems hardly to be convincing himself of the strength of his argument? The problems that he outlined do not seem to lie with anonymity or the fundamental principle of justice being open, but with the way that the press and some of our public servants operate on confidentiality. If there is a serious problem, we should address those issues rather than that of anonymity for defendants in rape or other cases.

Humfrey Malins (Conservative, Woking)

The hon. Gentleman kindly points out that I appear not to be persuading myself, never mind the rest of the Committee. If he knew me better, he would know that I sometimes have a slightly self-deprecating style. I work on the basis that I do not have to shout terribly loudly for my views to be considered sincere.

I have to come to a conclusion, and like the Select Committee on Home Affairs, I must somehow reach a balance. I feel very strongly indeed—I must try to impress upon the hon. Gentleman how strongly I feel—that the mischief that I spoke about earlier concerning what happens pre-charge must be addressed meaningfully. I also believe in the principle of openness, but I believe in equality under the law for both the complainant and defendant in a rape case. I appreciate that there are many different sorts of rape cases in which such issues are relevant, and that is why I argued against myself earlier. However, the same anonymity as currently applies to the complainant in a rape case, which lasts until the end of the trial with the leave of the judge, should apply to the defendant, undoubtedly until charged and probably until convicted. After that, matters would be different.

That is where I have arrived, by a circuitous route and having taken into account all the points that have been and will be made against me. I will listen carefully to how the Government approach the subject. I know that they will approach it genuinely, but, like my hon. Friend the Member for Beaconsfield, I will reserve judgment. I hope that the Government are able to satisfy us before we decide whether to press the amendments to a Division.

Vera Baird (Labour, Redcar)

I thought, right up to the last minute, that there was no need for anybody to deal with the tit-for-tat argument, which was rejected by Heilbron in 1976. As the hon. Member for Woking said, anonymity for defendants came into force at that time but it was in the teeth of what Heilbron said. She was completely against it on the basis that the tit-for-tat argument was poor and did not merit further consideration. In 1984, the Criminal Law Revision Committee agreed with Heilbron and said that that provision should never have been in place. It agreed

that the tit-for-tat argument, despite its superficial attractiveness—I am not being personal—was not valid, and it is not.

The hon. Gentleman is a lawyer, and he knows that the difference is that, if one does not give anonymity to complainants and witnesses, they do not come forward and they receive no justice. The more vulnerable they are, the less likely they are to come forward and the more they need the protection of the system. That is not the situation for defendants.

It is by no means limited to cases of rape or sexual offences that complainants or witnesses are given anonymity. Although there is a blanket provision in rape cases, anonymity is frequently given under the special protection measures in the Youth Justice and Criminal Evidence Act 1999 to all kinds of complainants and witnesses to try to ensure that they come to court.

In many other kinds of case, even before that Act, there was a real possibility that people would be allowed to give evidence from behind screens and that their names would be left off witness statements. Such people are given anonymity for the same reason: because they have to be persuaded to come to court. It is even more the case that rape complainants have to be persuaded to do so, as has been canvassed effectively. There is simply no equivalence to be drawn between the defendant's position and the complainant's.

I refer to Heilbron because, of all the hon. Members who have spoken, only the hon. Member for Beaconsfield and the hon. Member for Woking have pointed to rape as a special case for anonymity. The Liberal Democrats' arguments applied to every offence. All they seemed to be saying was, ''We've got to start somewhere, and it might as well be here, because that is what the legislation is about.'' That is not a good argument.

Annette Brooke (Liberal Democrat, Mid Dorset and North Poole)

I should perhaps mention that we were supporting the Home Affairs Committee investigation into the issue; the Select Committee came up with that recommendation. We were not just plucking it out of the air. It came to the conclusion that, on balance, there is an argument to be made. Of course, the Select Committee also considered the special case of abuse in children's homes. It considered that question for defendants, and in relation to pre-charge, too. There has been considerable concern about the subject of sexual offences. I could well be persuaded with a promise of anonymity until a charge is made for all offences. That is something comprehensive that I would accept.

Vera Baird (Labour, Redcar)

I am grateful to the hon. Lady for clarifying the basis of the Liberal Democrats' thought. The Home Affairs Committee thought on balance that there should be anonymity until charge, but it was only considering the Bill. The question is whether we should accept that or think more widely, and it is obvious that we have a general duty to the public to think more widely.

The hon. Member for Beaconsfield suggested that between 1976 and 1988—the relevant report was made in 1984, but the law was repealed in 1988—there were no problems with anonymity. That is not right. It was seen very widely as a slight to complainants in rape cases. It will inevitably look that way, because it is the only kind of offence in which one says publicly, ''This complainant is so little to be relied on that we expect the defendant to be acquitted, so we are giving him extra protection against false publicity, as he is almost bound to go free.'' That is a slight and suggests that complainants in that kind of case are, more frequently than in any other, making a false case.

Dominic Grieve (Conservative, Beaconsfield)

Will the hon. and learned Lady give way?

Vera Baird (Labour, Redcar)

I will, but may I finish my train of thought first?

It is a long time since that was an acceptable approach to complainants. I do not want to paraphrase the exchange in The Guardian any further than this, but the hon. Gentleman will recall that the 1970s were a time when rape complainants—and they were exclusively women—were considered so unreliable that their testimony had to be corroborated, or it could not be relied on by a jury. Very few women brought complaints of allegations against partners or former partners because it was almost impossible to get a conviction of that kind. The hon. Gentleman will also well remember that, in the 1970s, it was not even an offence for a man to rape his wife. Allegations brought against people by their partners or ex-partners were rare indeed, because the principle in those days was that a woman had nothing to complain about if a partner forced sex on her.

Happily, the atmosphere has changed, and the slights, the need for corroboration, the availability of a woman to a man once she married him, the inability to complain and the anonymity have rightly all gone. They should have gone many, many years ago.

Dominic Grieve (Conservative, Beaconsfield)

I, too, do not wish to revisit the entire correspondence, but in the 1970s there were far fewer allegations of rape—admittedly for the reason, which I fully accept, that doubtless many cases were not brought at all. However, the fact remains that, notwithstanding the anonymity, the conviction rate was considerably higher than it is today. I understand the hon. and learned Lady's point about a possible slight to the complainant, but we are here concerned with outcomes, and anonymity in the 1970s cannot be shown significantly to have diminished outcomes. Since anonymity was abolished, outcomes have declined progressively.

Vera Baird (Labour, Redcar)

What anonymity almost certainly did was to play a part in the other slight to the complainant in the 1970s: ensuring that very few complaints were made. The hon. Gentleman knows well that the number of complaints has risen quite enormously since that time.

Harriet Harman (Labour, Camberwell and Peckham)

May I intervene on my hon. and learned Friend to put a point that bears on the hon. Gentleman's intervention? He said that outcomes have worsened. Does my hon. and learned Friend understand it to be the case that the reporting of rape

has gone ahead of the increase in convictions, so that the number of convictions as a percentage of reported rapes has gone down, but the actual number of rapes brought to court and the actual number of convictions has gone up? Perhaps we should be encouraged by the increase in the numbers prosecuted and numbers convicted, but recognise that the number of allegations is moving ahead of that. The outcomes have not got worse, but we should like them to get even better. Is that not the case?

Vera Baird (Labour, Redcar)

It is the case, but the other point, which is wrapped up in what my right hon. and learned Friend has just said and implicit in my remarks, is that women did not complain about partner and acquaintance rape in the 1970s, primarily because rape by a partner was not seen as rape because of the rule about married people. What they complained about was stranger rape, so of course the conviction rate was higher: cases of stranger rape are relatively easy to get convictions in. The proportion of stranger rapes resulting in convictions has remained pretty constant. What has led to the decline in the conviction rate is the increase, which it is vital to encourage, in complaints of allegations against partners or former partners. With respect to the hon. Member for Beaconsfield, he has proceeded on a completely false basis.

I have dealt with the hon. Gentleman's first argument that we have taken this measure before with no harm. His second argument is that the low conviction rate means that rape is a special case and people have to be given protection if they have a greater potential to be acquitted. I regard it as an irony, and a cruel one, to use the low conviction rate as an argument for anonymity specifically in rape cases. Happily, the inspectorate of constabulary and the inspectorate of the Crown Prosecution Service last year confirmed many of the things that feminists and women's campaigners have been saying for many years—notably, that the principal reason why cases do not get to court and reach conviction is that the criminal justice system does not give complainants enough support.

That is a broad way of putting it. At the beginning, women have to go to police stations and complain and, if there is no sexual assault referral centre, take their chance with who is on duty, with how long they wait in the waiting room, with what the forensic medical examiner is like and with how long he takes to arrive. By then, they may have thought, ''This is appalling. If they are not going to give me any more support than this, I'm going to go no further''. The issue then moves on to how the police have historically investigated, thinking that, as there is a 7 per cent. conviction rate for rape, they will not bother with this one or try very hard because it will just go into the dump of acquittals. The Crown Prosecution Service is similarly guilty—of not getting the police to reinvestigate and not considering all the evidential position. All that has now been discovered, and all the agencies are trying to remedy it.

Dominic Grieve (Conservative, Beaconsfield)

I agree with every word that the hon. and learned Lady says. She knows that I welcome any

steps that are taken to facilitate complainants bringing their complaints and getting them taken seriously. That brings cases to trial and ensures that juries can make decisions. One must also accept that sometimes there will be evidential difficulties that will lead to acquittal, although that is not the fault of the complainant. However, I do not understand how the arguments that the hon. and learned Lady advanced, which I endorse and support, affect the anonymity of the defendant—that issue could go hand in hand with all of those.

Vera Baird (Labour, Redcar)

With great respect to the hon. Gentleman, they do affect the anonymity issue. Since the report drew the attention of all the agencies to the lax way in which they were pursuing trials, everybody, including the police, the Crown Prosecution Service, the courts and lawyers, has made the maximum effort to give support to complainants to encourage them to come forward. It is important that they do that and that the conviction rate increases. The hon. Gentleman proposes to do the opposite. He seeks once again to stigmatise complainants as a category of person who is not likely to be believed, or whose complaint is not likely to result in a conviction.

It is odd to stigmatise the people who need support with their allegation by saying that Parliament thinks they are not likely to get a conviction from their complaint and, as a consequence, that the man against whom they have made an allegation is different from any other kind of criminal justice defendant and needs special protection against unjust adverse publicity. That is an odd way of trying to increase the conviction rate, which everyone thinks is a good thing. That is a good reason and a major argument for why anonymity for the defendant must not apply only for rape and other sexual offences. To do that would run against everything that all the criminal justice agencies are trying to do to support and to encourage people to be confident that they can come forward and be looked after.

A further point, which was made by the Liberal Democrats, is that other witnesses come forward when publicity is attached to a charge. That happens very often, although not exclusively, in rape cases, because women on their own often do not have the confidence to speak out, particularly if the individual concerned is in a position of authority over them, or is more senior. When women appreciate that somebody else has spoken out, they get the confidence and they are galvanised to do the same.

It is impossible to legislate for the anonymity to be lifted so that other witnesses could be sought. I know that the hon. Member for Beaconsfield has considered that, too. One cannot know of the defendant has previously assaulted other women. Many rapists are serial offenders who form relationships with women—indeed, many offenders form relationships with vulnerable women. The fact that the guy was in a relationship with a complainant is no guarantee that he is not a serial rapist and nor that the woman who first complained does not need the help of other complainants to support her. It is difficult to legislate for anonymity to be lifted in such a way, because it is not known in which case it might be needed.

I am sympathetic towards a person who is charged and acquitted, but I do not think that saying his life is ruined is anything other than hyperbole. The most recent examples have demonstrated clearly that, although it is appalling for the person at the time, as soon as he is acquitted all the public sympathy turns against the person who accused him and is directed towards him, saying what a dreadful time he had. That is straightforward and plain. Frankly, people are fairer than Committee members are giving them credit for.

Chris Bryant (Labour, Rhondda)

I agree with my hon. and learned Friend in relation to cases in which people know that an acquittal has happened. However, the tabloid press have often let us down by reporting allegations at great length but not reporting an acquittal in anything more than a single sentence. A degree of prudence and responsibility is required from the newspapers, but it is difficult to see how that could be enforced.

Vera Baird (Labour, Redcar)

I take the point, but in the case that we have been talking about the acquittal has almost had more publicity than the initial allegations. The iniquity of the acquittal is what has given rise to this Committee debate and to the public debate. The debate is not against the defendant, but against rape complainants as a general category, who because of that case all of a sudden are again seen as a mischievous bunch of women. That is what the debate is a cipher for.

However, if I am wrong and Opposition Committee members are right and it is still agony for a defendant beyond an acquittal, then that agony is not confined to rape cases. Imagine if the two people accused of the Soham killings had had all the publicity but were never charged. They would be in a dreadful position; their lives would have been ruined, but they would have had nothing to do with rape. As the hon. Member for Woking said, there are many horrible offences; one just has to let the imagination run riot.

Having sex with an animal would be a horrible allegation; a person alleged to have done that would want to be anonymous. A person alleged to have beaten up an old lady and taken all her money would also want anonymity. The simple position ought to be that nobody should be named before they are charged. That is absolutely clear, because there is no certainty even about an allegation before a charge is made.

Such a position on anonymity must come soon but it would not be appropriate to confine it to rape. If it were confined to rape, one would have the two problems that I have set out clearly: other complainants would not come forward and those who have would be have the finger pointed at them as unreliable people, based on whose allegations Parliament thought convictions were unlikely. They would be undermined, and the provision would have the opposite effect to that which we are trying to bring about.

Humfrey Malins (Conservative, Woking)

The hon. and learned Lady makes a powerful argument but she must accept that there is room for two points of view, not least because the Labour-dominated Home Affairs Committee

appeared to take a view different from hers; it looked at the matter very carefully.

Vera Baird (Labour, Redcar)

I do not accept that there are two equally valid conflicting arguments. Public policy requires that we encourage rape complainants to complain; the hon. Gentleman's view would get in the way of that for no reason. What one could do perfectly simply, if it were desired, would be to stop publicity in relation to all crimes; rape would be covered. The Home Affairs Committee was looking only at the Bill and it came to its conclusion on balance. We should look at the wider [octire. Of course, no argument of that kind was levelled to the Select Committee: it read the arguments put before it, and none were put to it as well and openly as they have been canvassed by all sides today.

The position that I suggest is a clear one: having anonymity would be damaging to all the effort that the Government and the public agencies are putting into increasing the number of rape complainants who come forward and of convictions. In addition, anonymity would stop other cases from being brought. I invite the Government not to accept any of the amendments or new clause 1 and to dispense with clause 2, which is absurd as currently drafted. It would give a thrice or four-times-convicted rapist anonymity until the day of his death.

Chris Bryant (Labour, Rhondda)

I do not disagree with any of the arguments advanced by my hon. and learned Friend; I merely want to add a couple of others. In response to the hon. Member for Woking, I would ask if there is not room for two points of view. There is room for a profound understanding of the problem as it affects those working in child care, youth work, schools and those who may have had their lives made difficult by vexatious claims. I do not think that there are two possible legitimate answers.

In one set of proposals to deal with the problems outlined by the Opposition there is a suggestion that there should be anonymity up to the point of charge. There is no legal reason why there should be anything other than anonymity up to the point of charge. There is no reason why the allegations that have been made should be in the public domain at all, unless either of the two parties has told people.

We focused quite a bit on what newspapers, television and radio may do by way of publicising a case, or the allegations made against someone—as in the Matthew Kelly case—but in the community that I represent it is far more damaging for everyone in the street and the village to know that an accusation has been made than it would if an accusation were made in the Rhondda Leader. In fact, it would never appear in the Rhondda Leader as that newspaper has an exemplary record of making sure that vexatious claims do not suddenly appear all over the front page. The local police force has also been exemplary in maintaining the anonymity of all those accused of any crime up to the point that there is a case that needs to be answered and a defendant has been charged.

Non-publication, as suggested by the Liberal Democrats, does not guarantee anonymity. In many

communities in this country, the situation is not the same as it is in large metropolitan communities. In smaller rural communities where everyone knows everyone else's business, non-publication would make no difference to the anonymity of an individual or to whether that person felt that they had to move to another village. The two remedies that have been suggested simply would not solve the problem that hon. Members have raised.

The suggestion that there should be anonymity after charge seems extraordinary to me, not least because of the cogent argument put forward to those of us who were able to attend yesterday afternoon's meeting with the Metropolitan police. It would make it phenomenally more difficult for other people who had been raped to present themselves if they did not know that a charge had been made, or the name of the person charged.

In the main we have referred to cases of rape against women, but there are cases of rape against men and other abuse cases in which the same problem could be noted, and the same arguments could be advanced. If one's head teacher when one was a 13-year-old was charged with abusing five other boys in a school or care home and it was publicly known that he had been charged, that would make it more likely that one would understand one's past and feel able to come forward to make an allegation to the police.

I do not think that any of the remedies that have been proposed are right in principle, nor would they solve the problem that has been presented. As my hon. and learned Friend the Member for Redcar said earlier, all the arguments that have been advanced could be advanced in every other criminal case. I cannot see why if the problem applies to those accused of rape it does not apply to a defendant in a murder trial. If one is a City banker, one's reputation for honest dealing is probably going to be more harmed by an accusation of financial corruption. It is not legitimate to advance such arguments solely in the case of rape.

Rape may be thought to be a special case because such an act is thought of as sex, not violence. I refer to the sexual element—the taboo side of talking about rape—because it causes people to feel that the dishonour weighing on people simply because of their having to face such a charge in court is greater than the dishonour that is faced by those against whom other charges are made. That notion should not be upheld by the law. The wider population consider rape to be the act of a deranged stranger rather the act of someone who is known to the person who has been raped. People believe that a wholly different set of principles should apply to the defendant in rape cases from those that apply in other cases, but that is wrong.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman is profoundly mistaken. The public at large clearly understand the distinction between rape by a stranger and the vast majority of rape cases. Indeed, if an allegation were made that a person had raped a stranger, but he was acquitted, I expect that he would be less tainted than he would be by the fact that such matters had caused intrusion into his private life, which the investigation

of rape between two people with a history of sexual relations would cause. The public well understand such a distinction.

Chris Bryant (Labour, Rhondda)

The public may understand that distinction, but the general assumption among the wider populace is that, when people talk about rape, they are taking about an act between two strangers. Furthermore, most people conceive of rape primarily in its sexual context rather than in relation to the violence that has been perpetrated against the individual. That is why I do not wish to draw a distinction between the treatment of defendants in rape cases and those accused of any other violent crime. Rape cases should not be treated differently from other cases.

Yes, there are problems. We know that they exist in youth work in the United Kingdom. Some 20 or 30 years ago, some of the best youth work was done one-to-one. A single youth worker would work in a room with an individual child who was troubled. Such work is not carried out so much now because many youth workers are worried about the potential for allegations of abuse to be made against them.

I suspect that there is another problem in that the tabloid press still pays public servants, police officers, Customs officials and others for information far in advance of charges being made. By the time a charge is made, such matters are no longer newsworthy and of financial value. The solution to such problems does not lie in providing anonymity for defendants.

Julie Kirkbride (Conservative, Bromsgrove)

I shall be brief because obviously we want to hear the Minister's response to the issues that have been raised. By giving people who have been raped anonymity, we have recognised that there is a potential difference between rape and other criminal cases. In other circumstances, when people are accused of a criminal offence, independent corroboration is taken into account, such as missing money from a bank account or circumstances in which a person has been badly beaten or murdered. In the case of murders, DNA evidence gives rise to the strong probability of linking the people who are accused of the crime with their having committed it. Equally, there may be DNA evidence in cases of rape, but the issue centres on who is telling the truth about whether consent was given.

Such matters are difficult to balance as we heard yesterday, when the police gave their excellent presentation. Those of us who are members of the Culture, Media and Sport Select Committee, such as the hon. Member for Rhondda (Mr. Bryant), know that newspapers are keen to publish all the grim details of every rape case that they can possibly claim is pertinent to their area. The national newspapers are particularly guilty of that. In difficult rape cases, a person can be severely damaged by the prolific detail of intimate events that took place between them and another person where there is a dispute about the facts of that particular case. The person making the claim is given anonymity but the person defending themselves against the claim is not. Although there is the possibility that that person is guilty, given all the difficult balances that one has to make, it is reasonable that they should benefit from anonymity. Subsequent

to their being found guilty, the whole case can be put on public parade for their humiliation and just desserts.

Beverley Hughes (Labour, Stretford and Urmston)

The debate reflects the fact that there are no easy answers to the problems that we are discussing. All hon. Members are trying to find what they consider to be the best conclusion between some very acutely competing imperatives, which are inherent in those cases and, as I shall argue later, other kinds of cases. It is our conclusion that there should be no change in the law relating to anonymity. Amendment No. 42 would remove the clause 2, and we are resisting the amendments tabled by Opposition Members.

Roger Gale (Conservative, North Thanet)

Order. Amendment No. 42 has not been selected so the Minister cannot remove the clause. She will have the opportunity to achieve precisely the same effect when we vote on clause stand part.

Beverley Hughes (Labour, Stretford and Urmston)

I beg your pardon, Mr. Gale. It was included on the informal list of amendments. I note that it was not on the formal selection list produced for the Committee, so I will restrict myself to some of the arguments that have been put forward.

To respond to the points made by Opposition Members when they spoke to their amendments, the crucial question that must be answered is what is so exceptional about rape cases that it justifies anonymity for defendants? Apart from the hon. Member for Woking, all members of the Committee have recognised the importance of the principle of openness in the criminal justice system and that criminal justice should be executed publicly and should be seen to be executed publicly. It is right that that should continue to be our starting point. If that is the case, the crucial question is what is so exceptional about rape and other sexual offences that it justifies setting aside that principle?

John Randall (Conservative, Uxbridge)

I require some assistance. Is rape the only offence in which anonymity is always given to the victim, or are there other crimes where that is also the case?

Beverley Hughes (Labour, Stretford and Urmston)

As I understand it, the victim has anonymity in cases of rape, although in certain circumstances the judge can lift the restrictions on revealing somebody's identity.

Vera Baird (Labour, Redcar)

Other sexual offences are covered as well, but in addition there is a power, to which I alluded, that is often exercised by judges to give anonymity to complainants and witnesses in all kinds of cases.

Beverley Hughes (Labour, Stretford and Urmston)

I was referring to adults because child victims would, of course, be covered.

The critical question—what is exceptional about rape cases—needs to be answered, and it has not been satisfactorily answered today. Several issues have been raised during attempts to answer that question. Is the stigma associated with rape greater than that associated with other sexual offences or non-sexual offences, such as murder? I agree that there is an

impact on the individual of being charged with a very serious offence, or an offence that might not be regarded as so serious as rape or murder if it has connotations that reflect on the defendant's situation. If a bank manager is charged with embezzlement or if a politician is charged with taking money for questions, such charges fundamentally challenge the defendant's integrity as a person and examine their behaviour way beyond the norm to such an extent that it is perfectly possible to argue that the stigma associated with such offences and the consequences for people in terms of their livelihood are just as potentially serious as the consequences for people charged with rape.

The second argument put before us, by the hon. Member for Beaconsfield, is that the low attrition rate in rape cases makes it unique. I do not think that it is. If we look at other kinds of offence, particularly, arguably, sexual offences against children, we see that the attrition rate is as great if not greater, from the point of investigation through to conviction, as in rape cases. There is not an argument that rape is unique in the sense that a high attrition rate justifies the need for greater protection for defendants up to the point of either charge or conviction, depending on which amendment we refer to.

The hon. Member for Bromsgrove (Miss Kirkbride) argued that in rape cases there is often no corroborating evidence and that that makes a big difference. Again, there are other cases such as the sexual or physical abuse of children in which there is no evidence to corroborate the evidence of the victim him or herself. Therefore, if we want to go down the route of anonymity for rape cases, we must entertain the argument that the kinds of criteria being put forward by those behind that, apply equally to a much wider range of offences than rape or even a limited range of sexual offences.

A further issue is that to justify exceptional treatment, and anonymity, of defendants in rape cases might lead people to conclude that that is because there are many false allegations in rape cases, which also accounts for the high attrition rate and low conviction rate. I do not think there are Committee members who believe that. Clearly there is always the potential for false allegation and we know that it occurs. However, the general consensus here and outside the Committee is that the main reason for the low conviction rate in rape cases is not false allegation but the problem of securing a conviction in very difficult circumstances.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the hon. Lady for giving way. I am bound to ask her, is not the difficulty that there are undoubtedly cases of false allegation? Examples have been well documented. Is not one of the key problems in doing justice in such cases that awareness of the existence of such false allegations—often in cases where essentially complainant must be weighed against defendant in the absence of the extraneous evidence so often needed to help reach a decision—almost certainly colours the views of juries in approaching all such cases? They have to be approached with great caution. Perfectly properly,

juries follow the direction of the judge that they must not convict unless they are sure. Doing their job absolutely properly, they return acquittal verdicts. The problem is very difficult to get round.

Beverley Hughes (Labour, Stretford and Urmston)

It certainly is, and it has been the substance of much of our debate and discussion in Committee today. We have acknowledged those difficulties and have tried to assist with them in formulating various parts of the Bill. I respectfully suggest to the hon. Gentleman that that does not constitute an argument in support of anonymity for defendants in rape cases at whatever point in the process. The arguments advanced have not made the case on what differentiates those cases to justify anonymity. In deciding anonymity, we must weigh up not only the interests of the individual, but the wider public interest in having a criminal justice system that is executed publicly and is seen to be executed publicly.

John Randall (Conservative, Uxbridge)

I am being gently persuaded by the Minister's arguments, but I have one question. Bearing in mind what has been said, does she think that anonymity up to the point of charging for all offences—in such august company, I speak carefully on legal matters—would be a better way round the problem? There is obviously a big problem, but this might not be the place to deal with it.

Beverley Hughes (Labour, Stretford and Urmston)

My hon. and learned Friend the Member for Redcar put that proposition. The hon. Gentleman will appreciate that if we were debating it, we would be debating one of the fundamental principles underlying our criminal justice system. We have not heard arguments today from those proposing anonymity in a limited number of cases—rape plus a few other sex offences—that they really want to change the basis of our criminal justice system. We must stick with the proposal that there is a justifiable case for anonymity for defendants only in cases of rape and of a few other sexual offences.

Dominic Grieve (Conservative, Beaconsfield)

I was slightly perplexed by the Minister's comments, unless I have misunderstood them. I thought that the comments coming from the Home Office over the past few days, which have received widespread publicity, were all about taking the opportunity of this legislation passing through Parliament to come out with some suggestions about how the anonymity of the wide category of those being investigated might be preserved. Have I wholly misunderstood the issue? The spin machine must be totally out of control if the media are picking up that message while the Minister is telling us that no such message exists.

Beverley Hughes (Labour, Stretford and Urmston)

I will clarify that point in a moment.

The crux of our argument is that the case for differential treatment of defendants in cases of rape and a few other sexual offences has not been made. As the hon. Gentleman said, there could be a less fundamental remedy. The amendments would also hamper efforts to encourage more victims—mainly women—to report sex offences committed against them. Furthermore, restricting the details proposed by the clause would also minimise the chance of other

victims of a defendant coming forward in the case of serial offending or to enable the police to identify crucial witnesses.

Sandra Gidley (Liberal Democrat, Romsey)

Will the Minister give way?

Beverley Hughes (Labour, Stretford and Urmston)

I will finish this point.

It is important to note that when the restrictions were in place between the 1976 Act and their repeal in 1988, they caused practical difficulties, which were well documented. For instance, if a man escaped custody before conviction, the police could not warn the public that he was a suspected rapist unless the judge exercised his power to lift the restrictions.

Sandra Gidley (Liberal Democrat, Romsey)

I, like the hon. Member for Beaconsfield, am slightly confused by the mixed messages coming from the Government. In a meeting prior to the Bill's commencement with one of the Minister's colleagues, prior to the Bill's commencement, we were strongly led to believe that the principle was accepted and that the Government would be working on voluntary agreements to effectively achieve the same things. However, the Minister is now putting forward strong arguments for not doing that at all.

Beverley Hughes (Labour, Stretford and Urmston)

The hon. Lady did not really need to ask that question because the hon. Member for Beaconsfield has already asked it. I said that I would deal with it.

I have been talking about the amendments before us, which propose the legislative route to dealing with a problem. We acknowledge that there is a problem. There are difficulties about publicity that need to be addressed. It is accepted that some defendants have been unfairly treated. The solutions that have been proposed so far, which I have been arguing against, would make it a criminal offence to publicise someone's name either pre-charge or pre-conviction. We are not convinced that it is right to use legislation differentially or to use the protection of the criminal law for defendants only in specific cases. However, there is consensus that we need to do something. The first option should be the non-legislative route to improving the situation pre-charge when a defendant is publicised inappropriately or prematurely. We believe that we should pursue the voluntary route not just, as the hon. Member for Romsey implied, for rape or sexual offences, but for all offences as a matter of principle.

Sally Keeble (Labour, Northampton North)

Further to that, will my hon. Friend the Minister say whether the option of contempt of court legislation will be considered? That puts restrictions on newspapers reporting when it might prejudice a trial, and comes into effect as soon as it is thought likely that charges will be made. Presumably, that could be used more vigorously to control reporting that would have the adverse impact of the kind that the Minister has described.

Beverley Hughes (Labour, Stretford and Urmston)

Certainly, if there were opportunities to enforce existing legislation more robustly and to good effect, as my hon. Friend suggests, we would look at that. The Under-Secretary of State, my hon. Friend the Member for

Wythenshawe and Sale, East (Paul Goggins), has been pursuing the potential for informed and strengthened guidance for the police and the media. We believe that that is preferable to any change in legislation.

The police code of conduct provides that information that comes into the possession of the police should be treated as confidential—there are no two ways about that. I am aware of the concerns that often that is not what happens and that information is given out in return for money. Information should not be used for personal benefit, nor should it be divulged to other parties except in the proper course of police duty. The code also demands that police officers have a particular responsibility to act with fairness and impartiality in all their dealings with the public and their colleagues, regardless of whether on or off duty. They should not behave in any way that is likely to discredit the police service. I agree that unauthorised disclosure of information on a suspect by a police officer is a disgrace; it is also likely to be, and should be, considered a breach of the code.

John Randall (Conservative, Uxbridge)

Will the Minister give way?

Beverley Hughes (Labour, Stretford and Urmston)

Let me finish this point. Such a breach means that an officer's conduct has not met the appropriate standards for the purposes of the police conduct regulations, and disciplinary proceedings can follow. An officer could face dismissal or even prosecution, depending on the circumstances of the case.

John Randall (Conservative, Uxbridge)

Perhaps I should have been a bit more patient, because I think that I would have got my answer. I will add a supplementary question: is the Minister aware of any such proceedings being taken against any members of the police force in the past five years or so?

Beverley Hughes (Labour, Stretford and Urmston)

I am reliably informed that that has happened and I am certainly willing to provide information to members of the Committee. That is certainly relevant.

Chris Bryant (Labour, Rhondda)

I am delighted to hear what the Minister is saying, because members of the Culture, Media and Sport Committee have been banging on about the matter for the past few months, ever since the editor of The Sun confessed to us. The other side of the argument is, not only do police officers give evidence, but newspapers buy evidence from police officers. Will the Minister comment on that?

Beverley Hughes (Labour, Stretford and Urmston)

May I clarify where we have got to with ACPO? Meetings have taken place and we have reached an agreement with ACPO that it will amend its media and disciplinary codes for all forces to give greater prominence to the rules that govern the release of information about anyone suspected of an offence, but not yet charged with it. We are working to ensure that the guidelines are consistently and robustly enforced. At the same time, Ministers have had discussions with media representatives to assess how unhelpful and intrusive reporting of such cases can be avoided, with a view to amending and strengthening

the relevant codes of practice governing press conduct. A further meeting has been arranged and will take place before Report so that we can provide further details to Committee members about the results of those discussions and about how confident we feel that we can progress a much more robust approach and the implementation of stronger guidelines on the way in which the press deal with such issues.

There is a precedent that might give Members some comfort about the effectiveness of such an approach. Members may be aware that, following the passage of the Youth Justice and Criminal Evidence Act 1999, agreements were successfully put in place with the press. They require anonymity for persons under 18—defendants, complainants and witnesses—who are involved in criminal proceedings. The relevant provisions in the Act have not needed to be implemented because those voluntary agreements have stuck, have been adhered to and have worked well. That may give Members some comfort that the route proposed in those cases can also be applied successfully in this case.

The rest of the debate is in Hansard.