Police, Crime, Sentencing and Courts Bill

Lord Judge Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

My Lords, I should have opened those other amendments, and it is an error on my part that I did not. I am very grateful to the noble Lord, Lord Thomas of Gresford, because he has done a bit of the work that I should have done.

[Lord Judge (CB)]

If the noble and learned Lord decides to open them, which I would welcome, I would like to respond generally. So far, this debate has rushed along, and we were rather waiting for the noble and learned Lord, Lord Falconer, to tell us why he strongly supported all these amendments, and then we will answer them.

[Lord Falconer of Thoroton (Lab)]

The reason I did not tell noble Lords why I strongly supported all these amendments was because I made a mistake and did not realise that they were in the same group until the noble Lord, Lord Thomas, mentioned it. I apologise to the Committee for that error.

May I just go through them? I have done Amendment 268, which concerns Section 28 of the Youth Justice and Criminal Evidence Act. The next is Amendment 286, which proposes to insert a new clause into the Youth Justice and Criminal Evidence Act 1999 and would exclude the admission in evidence, whether by the prosecution or the defence, of any sexual behaviour of the complainant with a third party, for the purpose of showing consent or lack of consent, while leaving evidence of sexual behaviour with a third party admissible if it is relevant to any other issue in the case.

In addition, it sets out a further requirement that, where such evidence is sought to be introduced in relation to an issue other than consent, that material must be more probative than prejudicial, and it sets out the considerations the judge must have regard to in considering that extra requirement. The purpose of this amendment is to give the clearest possible signal that evidence of any sexual behaviour of the complainant with a third party—that is, not the defendant—should be regarded as completely inadmissible on the issue of consent. This is important because it is intended to mark a change from the past, where all too often such evidence is admissible in circumstances where it is of very limited probative value, and the ability of that evidence to be admitted makes people—complainants—incredibly wary of coming forward and making complaints. This is the legislature giving a clear signal that it wants a change in relation to that. That is why it is there.

--- Later in debate ---

I apologise for not opening these issues before. They are very important and I hope I have assisted the Committee.

[Lord Judge (CB)]

My Lords, I once tried a case where the most compelling evidence was given by a black woman who alleged that a white dentist had raped her. His case was that, as she sat in the dentist’s chair, she undid his fly and started sucking his penis. Her answer to the question put to her was, “I would never do that with a white man”, and it was compelling. If there had been evidence that in fact she had, that very compelling piece of evidence would have lost some of its compulsion. We have to be very careful not to send messages through legislation—messages we all share—because that is not the point of legislation.

I should add that there are plenty of times when evidence is inadmissible in law which may be probative, but there are, as far as I am aware—I cannot think of any; perhaps I will be corrected if I am wrong—few times where evidence which may assist the defendant is deemed inadmissible. That is an important step.

My other intervention is that, deep down in all this, there is a rather alarming—strange, really—new idea, which is that the Secretary of State should involve himself or herself in some of these important decisions. Let us look at the arrival of a friend, or an advocate’s friend—it does not matter what we call it; I personally wonder why that is necessary, when the prosecutor is supposed to be there as a minister of justice. I am looking at paragraph (e) of proposed new Clause 43A which would be inserted by Amendment 289. Why on earth should the Secretary of State be making regulations setting out procedure relating to hearings or appeals under this section? There is a perfectly good Criminal Procedure Rule Committee which produces Criminal Procedure Rules and is referred to in paragraph (b). With great respect, this has nothing whatever to do with the Executive. This is about the way cases are being conducted in court. Therefore, if there are going to be regulations, they should be produced either by primary legislation here or by the Criminal Procedure Rule Committee addressing the issues.

On Amendment 291, I am even more alarmed. Subsection (2) of the proposed new clause gives the Secretary of State the power to decide which judges may hear which cases. We do not allow that. It is an essential division that there is an Executive and that cases are tried by judges; the Executive have no say whatever in which judge will try which case. It would be very strange: “I think I would like Mr Justice So-and-so, or Mrs Justice So-and-so, to try this case”. It is unheard of.

More importantly in relation to the judiciary and to the whole of Amendment 291, I can confirm as a matter of certainty—I suspect this has been true since the noble and learned Lord, Lord Woolf, was Lord Chief Justice—that judges are not allowed to try cases involving rape or serious sexual offences unless they have attended Judicial College training and continue to be refreshed in the various ways in which the law, the principles, the understandings and insights have been developing. As I say, though, my real concern is that if this is going to be statute, then for heaven’s sake, it should not be in the hands of the Secretary of State.