My Lords, in replying, I preface my remarks by commenting on points made by noble Lords. The first was made by the noble Lord, Lord Thomas of Gresford, at the outset, while the Benches opposite were still thrashing out the batting order. If I may summarise the noble Lord’s position, I think it emphasised the importance of judicial discretion. A judge seized fully of the law and of the particular facts and circumstances applying to any case will most often be best placed to decide what should be done. I know that the noble Lord will recognise that my remarks cut both ways, and that he will hold me to them in the course of today’s debate. However, I fully accept what he had to say about the importance of judicial discretion.
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Secondly, in response to the point raised cogently by the noble Lord, Lord Pannick, and eloquently supported by the noble Baronesses, Lady Fox of Buckley and Lady Chakrabarti, we must not lose sight of the fact that the ultimate objective in any criminal trial is to do justice. For the reasons advanced by the noble Baronesses opposite, I am reluctant to do or say anything that might suggest that the scope of evidence relevant to the question of guilt, and of whether an acquittal should arise because the Crown has simply failed to put its case, should be curtailed artificially by measures such as those proposed in the amendment.
Following those prefatory remarks, I recognise that behind the amendments relating to the regimes in Sections 28 and 41 of the Youth Justice and Criminal Evidence Act 1999, is a dedication to improving the way the criminal justice system handles sexual offence cases and supports victims and complainants. That is a dedication wholly shared by the Government. It is absolutely right that we look to do as much as we can to support all victims, including those of sexual offences, and help bring those guilty of crimes to justice by means of trials that are as fair as they can be made.
Today we remain just as committed to the wider expansion of Section 28 and to ensuring that victims receive the support that they need during the justice process. Too many victims of rape and sexual violence tell us that they feel let down by the system, and we need to do more to improve how the criminal justice system deals with rape and allied offences.
Section 28 of the 1999 Act lies within Part 2, Chapter 1 of that provision, under the heading, “Special measures directions in relation to vulnerable and intimidated witness”. It plays an important part in that process. The Government were proud to announce in the rape review the planned extension of the availability of Section 28 for complainants of sexual offences and modern slavery offences to four additional Crown Courts. This was a commitment that we have since fulfilled. We are now working with the police, the courts and the Crown Prosecution Service to understand the operational changes and resources required to proceed with full rollout for this cohort of cases. I say that in anticipation of criticism from your Lordships that not enough is being done quickly enough in this anxious matter. Our priority is to roll out Section 28 for this cohort to all the Crown Courts first, as that is where this measure is already in place for vulnerable witnesses and victims of the most serious crimes.
There are considerable differences in the types of cases dealt with in the court system as a whole—it is a broad range. At this stage, I submit that it would not be right to roll out to other courts these provisions without full and proper consideration of the different technological and operational requirements, as well as costs and implications for the police, the Crown Prosecution Service and the courts, as that would risk undermining the existing provision of Section 28 for both intimidated and vulnerable complainants. An immediate rollout to other courts, without testing how the technology and process work in a very different set-up, would be premature and ill considered. It could risk undermining the success of other trials taking place in those jurisdictions.
I turn to Amendments 286 and 291. It is worth reminding ourselves of the provisions of Section 41 and what they do. Section 41 already prohibits the defence from adducing any evidence or asking questions relating to a complainant’s past sexual behaviour, except for in specific and very limited circumstances. They are circumstances that would not displease the noble Lord, Lord Pannick, and would not fall within what he would rightly consider to amount to a denial of justice. For the defence to adduce any such evidence, they must apply to the judge. Here I return to my prefatory endorsement of the remarks of the noble Lord, Lord Thomas of Gresford, at the outset. They must pass stringent tests of relevance and the need for this evidence to be adduced. It is a matter for the trial judge, who is fully seized of the competing considerations and the circumstances specific to the instant case.
May I address the Committee on how these matters work out in practice? With these safeguards in place, it is rare for the defence even to apply to adduce this evidence. In 2017, the Ministry of Justice and the Attorney-General’s office published a review of the operation of Section 41. An application under Section 41 was made in only 13% of rape cases examined in this review. Some of these applications were not granted, so in the overwhelming majority of cases analysed—92%—no evidence of the complainant’s sexual history was permitted to be introduced by the defence.
In any criminal case, a delicate balance must be struck between the victim, the complainant’s right to privacy and the defendant’s right to a fair trial. We believe that the current provisions in Sections 41 strike this balance carefully. The changes proposed by these amendments risk compromising the defendant’s right to a fair trial and hence would not be in the interests of justice. However, the Government share concerns about the use of a wider range of evidence in sexual offence cases, and action is already being taken. As part of the rape review action plan, we have commenced working with the Law Commission, which is examining the law, guidance and practice relating to the use of evidence in serious sexual offence cases. That review is considering the need for reform to increase the understanding of consent and sexual harm, and to improve the treatment of victims, while ensuring that defendants receive a fair trial.
We have also heard, through the rape review, concerns about the level of training of officials working in different roles across the criminal justice system. The Government agree that comprehensive, high-quality and up-to-date training on sexual violence and domestic abuse is critical for all those working in the criminal justice system. As to the point made by the noble and learned Lord, Lord Falconer of Thoroton, in introducing this matter, I gratefully acknowledge his indication that this was a probing matter, intending to have it placed on record that training exists. I am able to tell the Committee that such training does exist, but also that it is the responsibility of the Lord Chief Justice, not the Government, to make provision for such. It is for the Lord Chief Justice to assess and, if necessary, rule on the suitability of a judge for viewing matters of this sort. The rape review action plan sets out actions across several key areas of training, including improved training for police and the CPS on communications
with victims, and work by the National Police Chiefs’ Council to review and enhance training packages for officers and develop and implement joint training for police and the Crown Prosecution Service.
The Government seek to do more than talk about their ambitions and actions. The Government recognise the need to collect and publish accurate data to monitor progress and hold ourselves, and those working in the criminal justice system, to account. To ensure clear accountability we will therefore publish updates every six months detailing our progress against our ambitions, with performance scorecards monitoring progress against key metrics, including timeliness, quality and victim engagement in each part of the system, and implementation of the rape review action plan. Given the absence of clear, persuasive evidence that Section 41 is not currently operating as it should, any additional tightening of these provisions—I go back to the point raised by the noble Lord, Lord Pannick, and the noble Baronesses, Lady Fox of Buckley and Lady Chakrabarti —risks harming the defendant’s right to a fair trial, without any improvement in process for the victim.
Perhaps I might address the comments made by the noble Baroness, Lady Jones of Moulsecoomb, about the experience of complainants and victims within the criminal justice system in relation to these sorts of offences. I am aware of a view, said to be supported by research and referred to by the committee of the other place, as to the experience of victims and complainants in cases of this sort. I think all of us with a background in the criminal justice system detect, as I do, a tension between assertions of that sort and our experience as practitioners. Certainly, looking back on my experience over the past 20 years in criminal prosecutions in Scotland and defence work, including six years as Crown Counsel prosecuting in the highest Scottish courts, I simply do not recognise the account of the experience of complainers and victims in that jurisdiction, to which reference was made. I am sure that colleagues who practise, and have practised, and who judge in this jurisdiction would echo that.
I do not for a second doubt the sincerity of those advancing this picture of the courts as a hostile place but this divergence between us seems to emphasise the need for work to bottom out just what the reality of the situation is, as well as the necessary work intended to make it easier for complainers and victims of sexual crimes to come forward. However, I ask the Committee to take this point: that where notions of the difficulty of giving evidence, or even making a complaint, are exaggerated they will tend to have the unfortunate effect that genuine victims and complainers are deterred from coming forward. I ask that the Committee bears in mind those observations, drawn, as I say, from extensive experience and consultation with colleagues when considering these matters.
As I have explained, we are already taking actions on several fronts which will improve how the criminal justice system delivers for victims of sexual offences and the wider public. In the circumstances which I have set out, I hope that my remarks will be accepted and that the noble and learned Lord will withdraw his amendment.