My Lords, I will be very brief. I find myself in agreement with much that has been said this evening by the noble Lord, Lord Marks, but on this occasion I must state a thorough disagreement. I speak as somebody who has been at the criminal Bar, off and on, for 40 years.
Section 41 of the Act imposes substantial restrictions on the ability of defence counsel to adduce evidence of previous sexual conduct, or to start on a process of cross-examination as to that. I am sure the noble Lord has reminded himself of the terms of the restrictions in Section 41, which are set out conveniently in Archbold. I have taken the liberty of bringing a photocopy of that to this Committee. The restrictions are considerable, but in my opinion—based on a long period at the Bar—there are a very limited number of circumstances when it is necessary, to secure justice, that the defence counsel brings forward instances from the complainant’s past sexual life and has the right to ask questions about that. As it is set about by the restrictions of the judge’s discretion—which is set out in statute—I see no reason to depart from the existing legislation.
I am sure the noble Lord has consulted Archbold, Blackstone’s and Cross on Evidence. I would urge your Lordships in this Committee who have any doubt about this matter to look at those authoritative textbooks, where they will find satisfactory examples of instances when the courts have allowed such evidence and cross-examination.
The noble Lord is effectively calling for a review and it is very difficult, as a matter of principle, to stand against a review. I am sure it does not have to be in legislation. But it is calling for a review, and if enough of your Lordships’ Committee want one, so be it. However, in my view, the existing legislation is right and I very much hope there is no departure from it.