I beg to move Amendment No. 28, in page 5, line 19, after 'trial' insert 'before any conviction'.

With this we are to discuss the following amendments:

These amendments were grouped together when this matter was before the House on 21st May. It is understandable that they were so grouped. I do not have a copy of Hansard for that date, but I believe that it was indicated during the last few minutes of the debate then, just before 4 o'clock, that these amendments were to be so grouped.

I think that it would be of assistance to the House if I were to remind hon. Members of the contents of the amendments. Government Amendment No. 29, in line 26, on page 5, seeks at the end to insert:

"'; but a direction shall not be given in pursuance of this subsection by reason only of an acquittal of a defendant at the trial'."

Amendment No. 30, in line 26, seeks at the end to insert

"'(4) If at the conclusion of a trial at which any person is charged with a rape offence the accused is acquitted the name of the complainant should be published unless the judge rules otherwise'."

That was the amendment standing in the name of the hon. and learned Member for Thanet, West (Mr. Rees-Davies). Also grouped in the same bracketing are two amendments which stand in my own name. Amendment No. 31 seeks in line 39, at the end to insert

"'(5) Restrictions upon the disclosure of identity of the complainant shall not apply to any rape offence after the conclusion of an inquiry at a magistrates' court by examining magistrates where the magistrates concerned decided that there was no case to answer and dismissed the case.'."

I also tabled Amendment No. 32, on page 6, line 45 at the end to add

"Provided always that no restrictions stipulated in this section shall apply after acquittal of a person charged with any rape offence if such acquittal shall have been caused by the direction of the trial judge before or at the end of the case for the prosecution; or if at the conclusion of a trial resulting in the acquittal of the defendant, costs, or part of costs, are awarded to the defendant against the complainant or out of public funds.'."

These matters were grafted together, and it is understandable why that should be done. The whole of this clutch of amendments is concerned with the position of anonymity and the circumstances under which it would not apply. Indeed, that is the whole basis of Clause 4.

I would deal briefly with the distinctions which may be drawn in respect of them. The hon. and learned Member for Thanet, West had only a few minutes at the end of the last debate to develop his argument, but I think he was about to advance the case that an acquittal by itself should not necessarily indicate that the complainant in the case was a liar. That is putting it bluntly. I suppose the hon. and learned Gentleman was bearing in mind the arguments used by the Court of Appeal in the case of the Queen v. Sporle and others—one of the many Poulsonic cases which have been before the courts of the land as a result of the shenanigans at Newcastle—when the Court of Appeal rejected the appeal of Mr. Sporle, the one time boss man of the Wandsworth Borough Council, who had advanced the argument that as Dan Smith had been acquitted in a separate trial, in which Dan Smith was the briber and Mr. Sporle the bribee, and as Dan Smith had been inexplicably acquitted and Mr. Sporle convicted in a separate case, the Court of Appeal should quash the conviction on the grounds of inconsistent verdits. The Court of Appeal, in a very learned way, was noticeably rude about the argument advanced and said that two different juries were entitled to take two different views and "not guilty" included "not proven" and that the only circumstances in which inconsistent verdicts could be brought in would be where the same persons were arraigned in the same trial and before the same jury.

As I understand it, although it is a matter of speculation, that was the way in which the hon. and learned Member for Thanet, West would have advanced this argument. Perhaps he might also have argued the case that if once one concedes the principle that anonymity should apply—it is a principle which totally and utterly repudiate—one should not lightly depart from it. However, as will be seen, the amendments which stand in my name go in a rather different direction. To be fair to the hon. and learned Member for Thanet, West he does suggest a rather different approach in Amendment No. 30 on the basis that if

"the accused is acquitted the name of the complainant should be published unless the judge rules otherwise'."

11.15 a.m.

In other words, it places upon the judge the burden to decide why a complainant's name should not be published. Presumably a successful defendant who was acquitted could invite the judge to say in terms "This woman has been disbelieved. This woman at the very least may be a liar and a perjurer. I have been subject to the ordeal of trial by jury, with all the awful consequences which might have flowed from conviction"—that is something that perhaps this House may have very much in mind in view of some of the events which have occurred this year—"and having been exonerated, I feel that it is now time for the person who has been disbelieved to bear the odium of the publicity which I consider she ought to bear."

That is the important point of Amendment No. 29 although it does not go far enough. I, therefore, turn to my own two amendments and in doing so I am tempted to quote the case involving a former Member of this House. It seems unfortunate that we have to quote cases of Members of Parliament in respect of this matter. It concerns Mr. Raymond Blackburn who many years ago, by some strange quirk of the selection panel, was once a Labour Member of Parliament before he became an anti-pornographic fanatic. After he had ceased to be a Member for one of the divisions of the city that I represent—he was hon. Member for Northfields, as I recall—he was tried and convicted for an offence under the Prevention of Fraud (Investments) Act. He appealed and his appeal was dismissed by the Court of Criminal Appeal, as it was in those days, although the House knows that that court no longer exists having been incorporated in the Court of Appeal simpliciter.

He then sought to go to the House of Lords by way of the Attorney-General's fiat as that was the only procedure by which it was possible to take a criminal appeal matter before the House of Lords. The then Attorney-General, Sir Lionel Heald, declined the certificate on the ground that there was no matter of exceptional public importance meriting a further appeal. Mr. Blackburn, as I recall, then applied for the mandamus procedure to direct the Attorney-General to reconsider the matter. The Lords adjudicated in this case in ringing terms, saying that there must be finality in criminal law and that there can be no greater finality than acquittal by a jury or conviction followed by a refusal of leave to appeal in the way that I have described.

Nowadays, the procedure would be a little more protracted because the final stage is that the Court of Appeal has power itself to certify that a point of law of general public importance is involved—not of exceptional public importance as was the case before 1961—if the House of Lords refuses leave to appeal to itself. That is the final point involved.

If there is finality in matters of conviction, there must surely be finality in matters of acquittal. Although there is, under a recent provision, a rather peculiar exception whereby there can be an appeal to the Court of Appeal Criminal Division after acquittal on a matter of law so that the Court of Appeal can have a second look at the matters of law canvassed, even if the trial judge is reversed, that cannot derogate from the acquittal. The acquittal stands and the acquitted defendant is not a party to the proceedings before the Court of Appeal. There have been very few cases under this head. I think that the hon. Member for Burton (Mr. Lawrence), who has had more experience of these matters and knows more about them than I do, will know to what I refer. I think that he will agree that have accurately stated this novel situation, which might at first sight seem to derogate from the principle of finality of acquittal but which in practice does not.

I have said that whether or not a jury acquits a defendant heavy with suspicion and believing that the case was almost made out but not quite—in other words, believing that the defendant was probably guilty of rape—or whether it is a state of mind of total conviction of the defendant's innocence, an acquittal is an acquittal. The verdict covers the whole spectrum from extreme suspicion to total exoneration.

I will forget for the moment the problems of Scottish law, although I may have to refer to the Scottish verdict of "not proven", and I am sorry that the Lord Advocate is not here to help us on these matters. But in those circumstances it seems wholly wrong that any trial judge should be placed in the invidious position of deciding whether an acquittal was convincing or not.

I hope that I shall not tread on the corns of procedure if I refer to the Nabarro case. So far as I know, no one has had the hardihood to use it in the courts, although I have been tempted sometimes to refer to a "Nabarro order on costs".

The late Sir Gerald Nabarro was convicted before one jury, his conviction was quashed on the grounds that other evidence had come to hand which was not available at the trial and ought to be admitted, the case was sent back for retrial and he was acquitted at the end of a trial in which, as far as I can recollect, none of that new evidence was adduced. He was nevertheless awarded costs after acquittal, no doubt because the learned judge very properly took the view that, whatever the tortuous path which had been described previously, an acquittal was an acquittal and that was the end of the matter.

If that is the case in such a situation, it is right that, after an accused person is acquitted of rape, he ought to have the right to say, "That woman is a liar and I demand that her name shall be disclosed".

There may be one or two exceptional cases, such as those of juveniles, which are governed by a different concept of law, in which the principle of anonymity is rightly applied to defendants, convicted or otherwise, and in which the procedures are much more in secreto, for social reasons. But when the person concerned is an adult, taking the oath and giving evidence as an adult, and he is disbelieved, it seems to me right—[Interruption.] I hope that my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) will listen to me. Our proceedings today may be shortened if he is minded to accept my amendments. No doubt he will express himself on that subject in due course.

Having, I think adequately, enunciated that principle, perhaps I might give one or two examples. Madame Tussauds on two notable occasions has had to pay damages for libel for making a waxwork image of someone who had been acquitted of murder. There was the celebrated case of Monson, I think in 1892. Somewhat tactlessly, the owners of that interesting and admirable establishment of entertainment for the young made a waxwork image of that gentleman, who was acquitted by a jury. They paid heavy damages for it.

They had to do the same, I think—I hope that I am not doing them an injustice—in the equally celebrated case of Harold Greenwood who was charged in 1920 with poisoning his wife. This was the famous Kidwelly murder case in the Famous Trials Series. He was acquitted right at the end of the trial, not by judge's direction on the way but by a jury, and he successfully sued Tussauds for defamation.

Those two cases illustrate convincingly the fundamental constitutional significance for the citizens' rights of acquittal on indictment, whether it occurs early or late in the proceedings. I know that distinctions are drawn which from the subject of separate amendments, but because they are bracketed together, I shall refer to them one by one.

I should like to refer first to Amendments Nos. 31 and 32.

Although this is in no sense my Bill, I have discussed Amendment No. 31 with my hon. Friend the Member for Hemel Hempstead (Mr. Corbett), and we have agreed that there may be a valid point in what my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) is saying, although on a rather more limited scale than his amendment suggests. If, therefore, he will not press it, I will undertake to consider the matter, reply to him by letter, and if necessary put the matter right and incorporate such point as there is in the amendment in another place.

I appreciate that my hon. Friend the Minister of State may not be able exactly to formulate what he wants, but before I do what he suggests perhaps he can clarify. He says that the point applies in a rather more limited sense than my amendment suggests. Can he indicate in what sense my amendment should be whittled down? Unless and until I know that, it is difficult for me to decide whether what he has in mind would meet my wishes, whether it would go far enough to satisfy me.

My hon. Friend will know —if he does not, I need to remind him—that there are certain evidential points which may lead to a dismissal. It may be that in certain exceptional circumstances the magistrates' court does require, in the very exceptional circumstances we have in mind for publication, to have that power. It is in that sense that I invite my hon. Friend not to press Amendment No. 31 at this stage.

I hope I have it right, but do I understand that my hon. Friend is alluding to the fact that the dismissal of a case at the magistrates' court in committal proceedings is not an acquittal, that it is not an absolute bar to further proceedings, that matters may therefore be further introduced, that one cannot plead autrefois acquit?

indicated assent.

I see that my hon. Friend nods. The trouble is how one can draw a distinction. I do not know of any exception that he has in mind. Perhaps he could make it a little clearer. If he could, perhaps I could meet him.

At the moment, as far as I know—and I may be wrong on this point of criminal law—whatever the circumstances which lead the magistrates to dismiss a case before them on committal proceedings, whether it is because, having read the depositions or the committal documents, they are not satisfied that it all adds up to sufficient evidence, or whether, having heard the evidence on oath, they listen to a submission and then dismiss the case, it seems to me that the same provision applies. If my hon. Friend thinks that I have it wrong, he can say so, but it does not seem to me that he is drawing a distinction that is valid. Whilst he is ruminating on the point, I will describe why I think the provision should be applied in any event.

Although, as I have said, dismissal of a case before a magistrates' court is not a bar against further proceedings, in practice it is unlikely—and the exceptions are very rare—that further proceedings will take place. Of course, if a man, having been discharged from a magistrates' court after what we lawyers tend to call in our slang a Section 2 or Section 3 acquittal, outside the court tells a Press conference that he did commit the offence, whereas following a jury acquittal he cannot be retried on the matter on which he has been acquitted, in this instance he could be re-arrested, and one can envisage circumstances in which he would be, rightly, so re-arrested.

But if one leaves such peculiar exceptions on one side, it does not seem to me that in practice there will be many instances where that kind of thing is likely to occur. Let us consider the situation of a person who is discharged from a magistrates' court, not technically acquitted but where, for one reason or another, the magistrates are so dissatisfied with the case that has been put before them that they do not think that there is even a case to answer and that it is not right that the public should be put to the expense and inconvenience or that the defendant should be put in peril of the ordeal of trial, and therefore bring matters forthwith to a conclusion. What is the position then? Should a man be left for weeks, months, perhaps years, with the possibility of the reintroduction of proceedings hanging over his head at the behest of some person still enjoying the cloak of anonymity? I cannot believe that that would be a just approach.

I remind the House of a case in which a former Attorney-General, who, thanks to Lord Attlee's sense of humour, served in a Labour Government, had to consider a case. The Attorney-General was the present Lord Shawcross and the case was that of the murder of Joan Woodhouse in 1948. I shall not mention the name of the person who came before the magistrates' court, because it would be wrong to do so. I remind the House of what happened, and although I speak from memory I think that the details I give are essentially correct.

In the summer of 1948, the girl was found murdered in the estates of the Duke of Norfolk near Arundel. A man was shortly afterwards closely questioned and detained—the euphemism is "helping the police with their inquiries"—for some time. He was not charged and he was released.

Nearly two years later he was arrested on private information, the details of which were heard in closed court by the magistrates, who issued a warrant, having heard the evidence that was given in camera before them. The man was charged with murder and brought before the court. There was in those days no such thing as a Section 1 committal—a documentary committal—but in any case it would not have been an appropriate treatment for such a case. The evidence for this private prosecution was paraded before the bench, and after a submission on his behalf the defendant was discharged.

An application was then made by relatives of the dead woman to the then Attorney-General for his assistance in the preparation of a bill of indictment. He—and none of us would regard him as exactly Trotskyite—considered the matter and replied tartly to the then hon. Member for Gateshead, East, Mr. Moody, that it was the duty of the Crown to prosecute, not to persecute, which is an unexceptionable sentiment. One cannot keep raking over matters again and again. That is the answer on the point we are now considering.

The gravamen of my argument in support of Amendment No. 31 is that, for all practical purposes, this House ought to regard the discharge of a defendant from a magistrates' court on submission as if it were an acquittal, notwithstanding the fact that in law it is not, strictly speaking, a bar to further proceedings.

One may use another analogy—the Attorney-General's powers of entering a nolle prosequi, not often used, and not absolute bar to further proceedings in law. Nevertheless, for practical purposes it is treated as a bar and I can think of no instance where it has been withdrawn and matters have been further proceeded with.

Let me give another example of this grey area short of acquittal. Time and again for various reasons—because it is expedient to do so, because a defendant has been convicted or acquitted of something else, or because matters have been outstanding for so long—prosecutors ask that untried counts on an indictment, and indeed whole indictments, shall lie on the file and not be proceeded with without the leave of the courts or of the Court of Appeal (Criminal Division). In practice that means that the matter goes into deep freeze. All of us who have dealings with the courts know that once a matter lies on the file that is the end of it for all practical purposes, though there may be rare exceptions.

Would it be right if a rape count lying on the file, and therefore not the subject of an acquittal, gave the complainant an indefinite right of anonymity? I cannot believe that my hon. Friend the Minister of State would answer "Yes". I am sure that he accepts the substance of my argument.

One of the great objections to the whole Bill is that it tilts the scales of justice against an accused person. It is not a respectable or worthy argument that any libertarian would accept that because genuine rape is a horrible offence one should cut the corners of justice. That is an abominable doctrine. The more serious the offence, the more scrupulous the courts should be in protecting the rights of the accused.

11.45 a.m.

With Amendment No. 32 we come to the trial, where there is acquittal and in law total finality. I should like to remind the House of the various stages at which acquittal can occur. First, before arraignment, defence counsel can move to quash an indictment on the grounds that it is improperly constituted and that the offence, if there be any, revealed in the committal documents does not square with the indictment—I put it in rough lay terms, which is probably the best way to put it—and therefore there can be no trial. That is what used to be known as demurrer proceedings. A plea of demurrer is rarely used nowadays.

Acquittal comes at the second stage if the judge looks at the documents and bluntly takes the view that the whole matter is a nonsense and should never have been brought to trial. It is not a bad thing that a judge should take a robust view in that way from time to time. I remember reading of a case a year or so ago when a High Court judge took one look at the depositions, said "This is a load of rubbish" and physically tore them up. That saved the defendant the ordeal of a protracted trial, saved the public the expense, and saved the jury the tedium of several days of protracted adjudication.

The third, and much more common way in which a trial can be brought to an end is what is known as getting the case slung, to use our lawyers' vulgarism at the end of the prosecution's case, submitting that the evidence does not add up, that no offence is revealed, that the offence revealed by the witnesses is not appropriate to the counts on the indictment, or that although there is evidence it is so unsatisfactory as to be unsafe to leave it to a jury. Lawyers for ever invoke the celebrated case of The Queen v. Young. The Young doctrine has applied time and again in the courts.

Fourthly, having heard the defendant in the box, the learned judge may decide that it is clear either that he is innocent or that his explanations are so cogent as to make it impossible for any jury to find the case proved beyond reasonable doubt. He therefore stops the case there and then. If we are to draw a distinction between one kind of acquittal and another in these first four categories, I submit that it is only here that it can be done with any propriety.

Finally, there is acquittal at the end of everything, when the defence and prosecution have had their say, the judge has summed up, and the jury—whether they have retired for five minutes or five hours—acquit the defendant.

In law, all those acquittals are of equal value. Whether they come at the beginning, or the middle or at the end of the trial, they are all irreversibly valid. One can see some argument for drawing a distinction between some of them. That is rationale behind Amendment No. 32. It could be said that if the judge decides that the defendant should not even be called to give an explanation of his conduct in the witness box—in other words, that he has no case to answer—it must have been a pretty weak case.

I turn from the general to the particular. A rape case involves the quirks and idiosyncracies of witnesses, and in such circumstances as I have outlined it is a reasonable inference that the judge has concluded that the woman is a liar, a neurotic fantasist, or otherwise so unreliable a witness that nobody should be convicted on her words. In case anybody should think that this argument is exaggerated, let me mention what is contained in an extract from the Daily Telegraph of 6th October sent to me by an obliging constituent. I do not know whether the rape case outlined in that article has finished, and I shall not refer to any names because that would be wrong, but one passage is underlined in red ink by my correspondent. It came out in cross-examination that the woman who had made the accusation in the current case had on more than one previous occasion made an accusation of a similar kind against other persons, and those accusations were discovered to have been unfounded. Therefore, let us not have any talk about the impossibility of the existence of neurotic, perjurous women complainants, because they exist and they may put at risk the liberty, reputation and livelihood of innocent people.

I turn to the second half of Amendment No. 32 and to the words:

"or if at the conclusion of a trial resulting in the acquittal of the defendant, costs, or part of costs, are awarded to the defendant against the complainant or out of public funds …"

We are back to the situation in which judges, unsatisfactory as the situation may be, sometimes draw distinctions between some acquittals and others. Sometimes they award costs to a defendant who has had to bear part or all of the costs of his defence, and sometimes they do not. In so far as that is the practice—and I have said that I do not like it—the inference that should be drawn in that the judge, in the privacy of his own thoughts, has concluded that he agrees with the acquittal and takes the view that the defendant should not bear, in addition to his other ordeal just completed, all or part of the expense of his trial. If that distinction exists, it is at least arguable that where a judge in that peculiar and indirect way indicates his view of an acquittal by agreement with it, there is a slightly stronger case for disclosing the name of the complainant than if no award of costs is made.

It is unsatisfactory from another point of view because the defendant may be wholly legally aided and on a nil contribution basis—in other words, he has had to bear no part of the costs whatever. If that is the situation, the judge cannot even make a distinction in an indirect way by showing that he agrees with a jury's verdict because there is no basis on which he can award costs. There is no need to do so because nothing has been paid by the defendant. Even if it were proper—and I am not sure it is—for a judge to be able to indicate whether he agrees with a verdict, it does not apply in the case of poor people who, rightly, do not bear costs at all. That is one more reason why one should disclose the name of a person who has not been believed.

I summarise my argument by saying that I believe that this is a bad Bill involving a bad principle. I have already said —and I shall not repeat myself—"Why should rape complainants be treated with greater privilege than attempted murder complainants who may be in fear of their lives rather than of their reputations?". Having seen the terrified barmaid in the "Blind Beggar" public house case give evidence against the Kray brothers, I know what I am talking about. This peculiar Bill tries to give privilege in relation to a particular kind of offence, and that is wrong. It should be the aim of this House to improve the scope of any Bill and to seek to diminish the damage that it may do.

It might be convenient if I indicated at this stage the Government's attitude to these various amendments and dealt also with Amendment No. 29, which stands in the name of the Home Secretary.

Amendment No. 28 would deal only with a period before conviction. It would be unsatisfactory if the discretion of the judge were to be limited to any particular stage in the proceedings. Amendment No. 30, in the name of the hon. and learned Member for Thanet, West (Mr. Rees-Davies) would make publication of the name at the end of the trial automatic unless the judge ruled otherwise.

Where I part company from my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) is when he appears to suggest that there is no case of acquittal other than that which suggests that the woman has lied or made up a story against the defendant, or otherwise behaved disgracefully. We know that there are many other circumstances in which there can be no doubt that rape has occurred but, because of some procedural difficulty or doubt on the part of the jury, there could be an acquittal. In those circumstances it would be monstrous and quite against the spirit of the Heilbron Report if a person were then to be faced with the spectre of the automatic publication of her name.

My hon. Friend was good enough to say that he opposed both the Heilbron Report and the Bill. However, the House has accepted the Heilbron Report and the principle of this Bill. The consequences for the majority must follow that. The Heilbron Report in paragraphs 152 to 162 fully rehearsed and canvassed the reasons why there should not be automatic publication or publication of the victim's name. If the burden of automatic publication were to be imposed, it would mean a reduced willingness on the part of a person who had been raped to complain, because she might feel unable to face the ordeal.

Secondly, such persons as did then complain would feel, because publication would follow, that they had a stake in the prosecution. There would be an adversarial, personalising effect on the trial far removed from the traditional prosecution view that what is needed is a fair presentation of the facts without colouring. I believe that such colouring might follow if a woman thought that the alternative to the defendant's being convicted was the publication of her name.

I come now to deal with Amendment No. 31. My hon. Friend the Member for Handsworth appears to be the only man I know who cannot take "yes" for an answer. I accept what he says about autrefois acquit. There are, in certain exceptional circumstances, arguments for the publication of the woman's name. The magistrates not having any such power at the moment, I am asking for time to consider whether there is an additional power which should be given to them to deal, not with the automatic point, which is what my hon. Friend has raised—and I accept that I go nowhere near his amendment in securing automatic publication of the complainant's name—

Why not?

For the obvious reason. My hon. Friend has not been listening, although he enjoined everyone else to listen to his arugments. Because of our acceptance of the Heilbron Report, we do not believe that publication should be automatic. But there are certain exceptional circumstances involving the sort of person who my hon. Friend thinks infests these cases in gay abundance, namely, the person whose conduct is very bad indeed. There may be circumstances in which magistrates would need this power. I am inviting my hon. Friend not to press this amendment and to let us consider the matter. We shall contact him and suggest how this situation may be put right.

Amendment No. 32 is diametrically opposed to the Heilbron Report. The House has accepted the principles of that report as enshrined in the Bill. Such an amendment as this can do nothing but wreck the Bill. There are circumstances in which an acquittal may arise, not because the person raped has been disbelieved but because of many other factors. I do not believe that publication of the complainant's name would be a desirable feature in such a case. If there were wilful contempt, the papers could be referred to the Director of Public Prosecutions for consideration of other proceedings. That is what Heilbron said and that is the correct course.

What about the position where it is desired to institute proceedings for malicious prosecution? The taking out of a writ is a public matter. The naming of a person in a writ is public. What bearing does that have on the situation?

My hon. Friend will know that in proceedings for perjury or any other proceedings in connection with such a case the anonymity rule does not apply. If my hon. Friend had read the Bill more carefully, I do not think that he would have made that point.

The last part of Amendment No. 32 reads:

"costs, or part of costs, are awarded to the defendant against the complainant".

That would be a highly unusual affair unless the complainant was the prosecutrix. Section 48 of the Courts Act 1971 makes that clear. My main reason for rejecting the amendment is that it goes to the root of the Heilbron doctrine, to the root of the principle and it is highly dangerous for the House at this stage to depart from its acceptance of the principles of Heilbron and of the Bill.

Amendment No. 29 seeks to make it clear that it is only when the conduct of the complainant warrants publication that the judge should have a discretion under Clause 4(3) to publish the name. The mere fact of an acquittal does not of itself warrant a direction. The acquittal may be for reasons other than the conduct of the complainant and, therefore, it is unfair that she should face this kind of hurdle race with possibly a vested interest in the result of that hurdle race in circumstances in which she is not morally to blame. In exceptional circumstances, the judge has a discretion. I think that that affords all the protection that is necessary.

My hon. Friend referred to the effect upon the defendant of these proceedings. He will know, as I do, that, if the defendant is acquitted, the effect of New Clause 1 will be to prohibit publication.

I think that it is right that the Opposition should state their view shortly on these amendments. Our attitude to the whole Bill has been made clear on previous occasions. We are not on the whole enthusiastic about it, but we shall not vote against it and certainly we shall not delay its passage by lengthy speeches.

However, we should have preferred certain of its provisions not to be there, because they distort the fabric of our law for no good enough reason. In some instances they introduce a complicating factor to the understanding of the law and give an impression of change which in reality does not exist because the practice and the operation of the law of rape in our courts is already along the lines of some of the proposals in the Bill.

We have doubts about the anonymity provisions in the Bill as a whole, although no such doubts about anonymity in the case of the complainant. But the fact remains that, having got a Second Reading, the principle of anonymity having been established and having been accepted by the House, there does not seem to be much advantage in making exceptions to it.

Are we to understand from that that whenever in future a Bill receives a Second Reading, the Opposition will consider themselves bound not to alter it in any fundamental way? That will be very interesting for those people moving the Aircraft and Shipbuilding Industries Bill.

Before the hon. Member for Burton (Mr. Lawrence) takes up that point, I must point out to him that, strictly speaking, most of his contribution so far has been a Third Reading speech. I hope that he will address himself to the amendments under consideration. I presume that there will be a Third Reading debate later. Therefore, I invite the hon. Gentleman to confine himself to the amendments.

I apologise, Mr. Deputy Speaker, for being general. However, I felt that it was important to make a few general introductory remarks in order to explain the Opposition's attitude to these specific amendments.

In answer to the question put to me by the hon. Member for Birmingham, Handsworth (Mr. Lee), I laid down no generalised principle. Clearly, he was not listening to me. I make it specific if I did not do so before. In this Bill, the principle having been accepted, there does not here seem to be much advantage in making the exceptions proposed. The balance of advantage and disadvantage in giving publicity to the complainant in cases where there have been forms of acquittal is in fact very narrow.

The hon. Member for Handsworth has given some very strong reasons on one side why the complainant should be disclosed by name after these events. But there are strong reasons on the other side, and one has been referred to by the Minister.

I pick up just one of those reasons. It does not necessarily mean that because there has been an acquittal, there has been a false accusation. There may be a situation, for example, where truly the complainant was raped but where the jury decided that there was either no corroboration, or no satisfactory corroboration, resulting in a situation in which the judge had to say to the jury "If you do not find that there is adequate corroboration, you must bring in a verdict of 'Not Guilty'" It would be the grossest of misrepresentations of the truth of the situation that in every case of an acquittal in a rape charge the complainant has been falsifying and, if she has not been falsifying in any case, it is unfair within the principles of this clause that the finger of scorn should he pointed at her.

The balance being a fine one and the principle being established as a result of the Second Reading debate, the Opposition do not feel minded to challenge the Government if this amendment should go to a Division.

I make one brief comment on Amendment No. 31. I am not quite clear why the Government consider that the other amendments would be a breach of the principle but not where the magistrates' court has dismissed the case.

I did not say specifically that I accepted that it was necessary to breach the principle. I said that, within the principle and within the limited exception allowed, there might be a need for the magistrates' court to have some power such as is given to a judge to order publication. That is what I wanted to consider. I gave no undertaking that it would he done.

I accept that, and perhaps when the matter is considered in another place, the proper result will be achieved.

Government Amendment No. 29 is the mere battening down of the hatches against the amendments and, therefore, consistent with everything that I have said. We have no wish to vote against that.

In the result, there is some consolation for any of us with doubts about whether these amendments should be opposed by the realisation that the matter will or may be fully considered by the House of Lords before coming back to this place, during which time, I understand, the opinions of the Criminal Law Revision Committee, for which my hon. and learned Friend the Member for South Fylde (Mr. Gardner) asked on 21st May when this matter was previously before the House, will be in the hands of the Government so that their decision may be wiser than some of us think it is at present.

I beg to move Amendment No. 44, in page 5, line 43, leave out 'any editor and any publisher' and insert 'and any editor'.

With this we may take the following amendments:

Two principles are involved here. With respect I think that these amendments are rather oddly grouped, because they deal with two quite different matters. One deals with the question of publication responsibility and the other with our old friend the principle of mens rea—whether the act is committed knowingly. The Minister offered us half an olive branch in the last debate, but he did not give any undertaking that he would necessarily introduce an amendment in another place. Perhaps that is because of the absence of enough Labour Peers to ensure a Government majority. I would have thought that there was no difficulty in creating enough Peers for the purpose. Certainly the qualifications for a life peerage are so low that there should be no difficulty in getting enough people to go to the other place. I am not sure that the Minister's undertakings will be enough. If my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) comes forward with proposals of that kind, I shall look favourably on them.

Quite clearly this Bill seeks, through the aegis of Clause 4, to embrace a large number of persons who might conceivably be involved in some way in improper publication or disclosure of the name of a complainant. To a large extent it is understandable that the sponsors of this Bill should wish to widen the scope in this respect so that there will not be any loopholes to negate the principle in the clause. At the same time it would be wrong to pass over the provisions of the clause without comment, because there are a large number of categories of persons who in some way or another are involved by it.

I wonder about these categories. My hon. Friend the Member for Hemel Hempstead is a journalist and he knows that even though editors have diminished in importance since the days of C. P. Scott, they bear a can-carrying responsibility, largely related to what appears in their newspapers or periodicals. It does not seem to me to be a really adequate answer to say—and I imagine this is what is behind my hon. Friend's purpose in enumerating a large number of categories of people he wishes to involve—that the law of libel can apply to a wide category of persons who are in some way involved in the publication of defamatory matter and, therefore, for the same reason, we should involve a large number of persons here as well.

I should have thought it would be sufficient—if one accepts the principle behind the Bill, and I do not—to involve the person who wrote the article which disclosed improperly the name of the complainant and the editor or sub-editor responsible for vetting the copy. Publishers are comparatively remote people. One might just as well argue that the owners should be incorporated in the scope of the Bill, and why not? The owners dominate the newspaper and periodical world. We still have an edifying situation, in contrast with broadcasting, whereby newspapers, like professional footballers and cattle, are hawked and sold around from one tycoon to another.

We had the invasion by Lord Beaver-brook and the painful consequences of that many years ago. In recent years we had the late Lord Thomson of Fleet who made a comprehensive takeover bid for the whole of Fleet Street, and even more recently we had Rupert Murdoch doing much the same kind of thing. If the movers of this Bill really believe that publishers should be involved in the scope of the penalty clauses, why not the owners as well? Hon. Members will note that I am being brief. I want to move on because there are very important matters which I want to discuss later in detail.

Order. There is no need for the hon. Member to tell us now what he intends to discuss after 2 p.m.

I turn now to the top of page 6. Clause 4(5)(b) says

"in the case of other publications, the person who publishes it".

I want to insert the word "knowingly". When one word in this context means such a great deal, I would have hoped that the hon. Member for Burton (Mr. Lawrence) would take a rather less unheroic view of the duties of the Opposition than that which he has indicated so far. What he said on the last amendment will delight the Government Whips. He indicated that once the Second Reading has passed, that precludes drastic amendment of matters in the stages which follow:

It is no use his saying that this should apply to one Bill, and not to another. I am afraid he does not fit very well into the role of the Grand Old Duke of York. I shall look anxiously to see him join me in the Division Lobby later, or otherwise one can only wonder whether the Iron Lady is not a soft-leaded lady after all.

12.30 p.m.

During the 1966–70 Parliament Lord Hailsham, as he now is, sounded off philosophically, as he does sometimes, against the alarming increase in statutory offences. Such offences do not require as an ingredient of the defence the concept of mens rea. He was right to do so. This is a disturbing development in English criminal law. Some of his extravagant language and his forebodings about democratic tyranny—I think that was the term he used in the Dimbleby Lecture—would be more appropriately directed towards this kind of situation than to the wider scheme of the sovereignty of Parliament, which sovereignty has been in some measure destroyed by our unfortunate adherence to the Common Market.

If we do not include the word "knowingly" in the Bill, there is a danger that the principle of a statutory offence will be applied to this part of the Bill. The very fact that the clause enumerates such a large number of categories of persons who may be deemed to have committed an offence points in that direction. Some of those persons are remote from the act which would give rise to the complaint. After all, presumably only one person would be writing down the name of the complainant, and only one or two people —the sub-editor and maybe his editor—would be vetting that copy. A number of other persons would of necessity be fairly remote from the act complained of. Would it not therefore help to mitigate the matter if we followed the course I am suggesting?

I am sorry that my hon. Friend the Member for Hemel Hempstead is not here. I would have thought that the temperate and tolerant way in which he viewed amendments on 21st May indicated his willingness to accept my line of argument. We shall have to do without him and the other sponsors of the Bill, who seem to have gone off for an early lunch.

Is it not desirable ex abundanti cautela that we should include the word "knowingly"? The House will remember the furore which occurred a few years ago when, to people's considerable surprise, the Divisional Court in the case of Sweet v. Parsley decided that someone who owned a house in which, unknown to the owner, cannabis was being smoked was guilty constructively of the offence of permitting cannabis to be smoked. The furore was interesting because when the Court of Appeal made its decision there was, rather surprisingly, some correspondence in The Times, including a very powerful and cogent letter from my hon. Friend the Member for Feltham and Heston (Mr. Kerr), drawing attention to the peculiar situations that could arise if one held a person to be constructively guilty because, unknown to him, someone had committed an offence on his premises.

It would be amusing to consider what would have happened if that decision had not been reversed and if someone had managed to smuggle cannabis in and smoke it in the cells below the Court of Appeal. Would that have made the keepers or the authorities of the High Courts of Justice constructively guilty of permitting cannabis to be smoked on their premises? Would it reductio ad absurdum have had the effect of putting Her Majesty's judges, sitting in the courts that day, in peril of inadvertently committing the offence?

The matter went on appeal to the House of Lords. The late Lord Reid, whose contributions to the courts can hardly be over-estimated and who was until his death one of our most distinguished judges, was sitting, and common sense reasserted itself. The decision was reversed. In other words, we were rescued from a situation in which an innocent person could be deemed to have committed an offence without his knowing or even suspecting that an offence had been committed.

It is for that reason and because I do not want to see a repetition of the kind of contretemps which arose in Sweet v. Parsley that I move the amendment.

Perhaps I may state the Government's view on the amendment. I accept that the concern expressed by my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) on this point is reasonable. The Government might have accepted the amendment but for the existence of Clause 5(6). It is stated there that where a person is charged with an offence under Clause 4(5), it shall be a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or broadcast was of such matter as is prohibited by subsection (1).

I believe that provides the sort of protection my hon. Friend seeks. I ask him to accept, therefore, that the amendments are unnecessary, even though they have done a valuable service to the House in probing the matter.

The matters involved in the amendments are peculiarly within the mind of the person concerned. If the amendments were accepted, they might place an unreasonable burden on the prosecution, but the overwhelming burden of my argument is that a defence is provided in Clause 5(6). This recognises the point made by my hon. Friend and provides a defence in these circumstances. I hope that he will agree that the amendments are not necessary.

I beg to move Amendment No. 47, in page 6, line 9, leave out "£500" and insert "£100".

With this we may take Amendment No. 48, in page 6, line 9, at end insert

'or on conviction on indictment to a fine not exceeding £1,000'.

Though my confidence has been diminished since the start of the day, I am still confident that some of my amendments will prove acceptable to the militants who have brought forward this Bill. I shall continue to conduct my arguments on a fairly low key, as I hope I have until now. I notice that two hon. Members in the opposite camp—Members of the non-Opposition—agree with me.

The first amendment seeks to reduce the penalty that may be summarily imposed. Even in these days of inflation £100 is still a sizeable figure. It is not desirable to vest in magistrates too much power for summary jurisdiction, not because they do not, for the most part, do their job well, but because, for the most part, their courts are overcrowded with work.

Anyone who goes near any of the London magistrates' courts, especially during the summer, which has been appropriately described as the foreigners' shoplifting season, will know exactly what I mean. There is an endless succession of cases going through the courts, especially those north of the river near Oxford Street. We should not burden them with additional duties.

When I considered tabling this amendment, I wondered whether it was right that magistrates should try these matters at all or whether it might be more appropriate to delete the provisions which grant them jurisdiction, particularly as I have tabled a second amendment which provides for trial on indictment. Once again the enthusiastic sponsors of the Bill have left the Chamber, leaving the Minister, the Opposition spokesman and myself to consider these matters as best we can without the benefit of their advice. I find it strange, but I am not unduly surprised by their attitude.

There are 11 sponsors of the Bill. One would have thought that they could take it in turns to stay in the Chamber. I have not seen some of the sponsors within the precincts of the House today. Others have flitted in and out in a rather spectral manner.

If this offence is important, it falls into two categories. It may be committed through carelessness and inadvertness with nobody intending any harm. In that case I should have thought that a modest penalty such as that provided for in Amendment No. 47 was adequate. One can readily see a situation in which through some confusion the offence might be committed entirely by mistake.

In that situation surely an apology, and perhaps a conditional discharge, would be a perfectly adequate way for justice to be done as between the offender and the complainant. In such a case the £100 fine, if anything, is excessive. Certainly it is an improvement upon the £500 fine, which, if I may hark back to the Oxford Street shoplifters, is regarded as being adequate to deal with wealthy people who go on a shoplifting spree. For what purpose they do so cannot possibly be imagined, except that it is rankly dishonest and anti-social.

The second category is different altogether. Someone might decide to publish and be damned, to use what I think was the Cudlippian dictum. In those circumstances we are faced with someone who is deliberately seeking to defy the law. I believe that this is a thoroughly bad Bill and I still hope that it will not reach the statute book. Judging by the amount of work that has to be dealt with by the other place, the likelihood is that it will not get through. Indeed, I have reason to believe that some amendments will be moved in another place. That means that we are in for some more fun.

Dealing with the Bill as it stands, and accepting and working from the false premise that it is right and proper that anonymity should be protected and that those who breach it unlawfully should be punished, we must carefully consider the penalties that are provided. Not even the most fervent supporters of the Bill have gone so far as to suggest that an editor or writer, for example, convicted of an offence under Clause 4 should go to prison. In parenthesis, there might be circumstances in which a wilful and unlawful publication amounts to a contempt of court. I strongly suspect that that is the case. The penalties include imprisonment and imprisonment generally is the penalty. No doubt my hon. Friend will have something to say about that when he replies. I hope that he will do so a little less perfunctorily on this occasion.

Leaving aside the armoury of contempt, which may make these penalty provisions unnecessary altogether, we still have to consider the proper way of dealing with the matter. If somebody deliberately flouted a court for no valid reason, it might well be that the penalty of £500 would not be adequate. The flouting might occur malevolently. That is one more illustration of the absurdity of the Bill—namely, that the whole of the anonymity concept can be destroyed by a person who has been acquitted taking out a writ for malicious prosecution. Although the chances of success are limited, all such a person has to do is to take out a writ in the High Court. When the name has been thoroughly circulated around the place—and these matters are news because writs for malicious prosecutions are extremely rare—he can issue a notice of discontinuance and drop the proceedings. In payment of a small amount of costs, he will have achieved his objective lawfully—namely, disclosure of the name of the complainant.

That would be poor news for the sponsors if they were present, but if they read this debate in Hansard they will discover that this part of their Bill is a nonsense. However, we shall deal with it on the basis that it makes sense. I think that my hon. Friend will agree that if there should be a more severe penalty than is provided for in the Bill, the offender should have the right of trial on indictment. Some complicated issues could arise in such cases, issues that might be regarded as being too complicated for justice to be done in the magistrates' courts, with all respect to lay magistrates.

The interpretation of much of the Bill will give no end of problems. My hon. Friend made much of what he thought was the adequate answer to Amendment No. 46 on the question of "knowingly". I hope that he is right. I do not think that he is wholly right, but let us assume that he is. At all events, the Bill will provide the courts with some vexed questions to decide. If we accept the principle contained in the Bill, there might well be some cases—I say this in complete seriousness, I am not being facetious or ironical—when the offence is so flagrant and wanton that it merits a higher penalty than is provided.

Certainly a £500 fine would be a fleabite to a newspaper organisation. Indeed, a £1,000 fine might be regarded as a modest penalty. If we accept that that be right, surely those accused of an offence should have the right of trial by jury. That is why I claim that the two amendments are self-balancing.

On the one hand, I seek to reduce the penalties that can be imposed by a court of summary jurisdiction because I think that they are too great for the inadvertent offender. At the same time, they are not great enough for the wanton and flagrant offender who seeks defiantly, and maybe for some improper or malicious motive, to publish and be damned. If that applies, and if that principle is accepted, such persons should have the right of trial on indictment. Perhaps it is just about arguable, although I have not sought to do so in the amendment, that these matters should not be dealt with by summary jurisdiction but on indictment. Perhaps they all ought to be indictment matters.

Looking at the realities of the situation, I think it not very likely that there will be many offences of this kind. However, where they are alleged to have occurred, it seems likely that they will raise quite complex issues, and where complex issues are involved, I should have thought that the House would agree that it is right that a jury properly directed by a judge is the right tribunal to adjudicate.

In giving the Government's view of these amendments, I hope that my hon. Friend the Member for Binning-ham, Handsworth (Mr. Lee) will not take brevity for lack of interest. I shall certainly reply to the points he made, but I shall do so briefly because I believe that, though important, they lie within a brief compass. That is why I do it, not through lack of interest in his arguments or in the subject of the Bill.

I found somewhat unfortunate my hon. Friend's description of debate on possible amendments to the Bill as "some more fun" in prospect. It is a serious Bill touching a serious matter not only for—

Did my hon. Friend say that I spoke of "fun"?

My hon. Friend said that there was some more fun in prospect in the House of Lords.

rose—

No, I will not give way, because I heard what my hon. Friend said very clearly.

On a point of order, Mr. Deputy Speaker. I am sorry to intervene in this way, but quite clearly my hon. Friend has misunderstood me. If he thought I used the word "fun", I most certainly did not intend such a word, and he must have misheard. I do not regard this as a frivolous matter in the least.

I agree with my hon. Friend that it is by no means a frivolous matter. I shall now deal with the specific points which he put. First, he says that £500 may be too severe a penalty for an inadvertent offender. He knows that the penalty is a fine not exceeding £500, which gives the magistrates adequate room for taking account of the offender who is inadvertent. The whole scale of penalties, ranging from a conditional discharge up to the maximum fine, may be applied in accordance with the seriousness with which the magistrates view the particular case. That is an answer to one of the points my hon. Friend made in urging support for these amendments.

Second, my hon. Friend says that there are cases where a trial on indictment is more suitable, and therefore it should be taken out of the hands of the magistrates completely. To that I make two points in reply. The nearest analogy to these proceedings is to be found in section 3 (5) of the Criminal Justice Act 1967, which deals with the question of penalties when a person publishes the name of someone involved in commital proceedings where publication of that name has not been sanctioned. The maximum penalty there is a fine of £500. In the years since the passing of that Act, no one has complained about the adequacy of those penalties. Here, too, the figure is £500.

I understand the reasons for which my hon. Friend desires a transfer of the work load to the Crown courts, but that runs completely contrary to the Report of the James Committee, which spoke of the overburden on the Crown courts, about which I am sure my hon. Friend will know from personal experience much better than I. The overburden on Crown courts makes it desirable that more cases be tried summarily. The James Committee also made certain suggestions about maximum penalties imposed by magistrates' courts which might, in the most extreme cases which my hon. Friend cited, make the punishment fit the crime.

I am aware that the House has not debated the James Report and therefore I cannot speak for the House in this matter. However, it seems to me that, if and when the penalties which can be imposed in summary proceedings are considered, this Bill and these offences can be then considered.

Magistrates already have power in similar cases to impose a fine up to a maximum of £500. That is the identical provision in this Bill. It has not been thought unsuitable for magistrates to try such cases. It has not been thought inadequate that they may impose a penalty up to a maximum of £500. That is why I ask the House to reject the amendments. Indeed, I ask my hon. Friend, having canvassed and probed the question, to agree that £500 at this stage is the proper figure.

I shall reply briefly to what my hon. Friend has said. I had thought that the Opposition spokesman would have a view on this matter, but they appear to he completely speechless, which will be an interesting matter for comment on another occasion in a totally different context.

My hon. Friend has in some measure answered the questions, and he is right when he says that the Criminal Justice Act makes similar provision. I am not sure that he is right to anticipate the James Committee quite as he does. We do not know whether the James Committee will have its recommendations implemented. Its champion, whose names is so closely associated with it, is unhappily dead, which is a great loss to the criminal law, as my hon. Friend well knows, since Lord Justice James was one of the finest of our criminal judges.

I am bound to say that my hon. Friend's observations—or lack of them—with regard to the problems likely to be thrown up in this connection do not really convince me. This will be a difficult problem when it arises, and I still do not think that the magistrates' courts are altogether the most suitable places for these matters to be played out. However, having said that—I presented the amendments with complete seriousness, not seeking merely to be cussed—I feel in the circumstances that I should beg to ask leave to withdraw the amendment.

I beg to move Amendment No. 49, in page 6, leave out lines 12 and 13.

I suggest that it will be convenient to consider at the same time Amendment No. 50, in page 6, line 17, at end insert

'or be is accused by way of a bill of indictment'.

These amendments can be dealt with briefly. It seems to me that the laying of an information is not the most appropriate way to bring a rape offence before a court. As far as I know, it is the kind of offence which, because of its seriousness, would normally be taken by way of a charge. The real objection here, however, is that, where proceedings are started by summons—as I say, that does not normally apply to this kind of offence—they often take a long time before they reach court.

Summonses are frequently returnable a long time ahead. In these circumstances, it seems to me that one has here one more example of the scope of this change being enlarged beyond what is necessary. I shall take an example which, I think, will give more reality to the situation.

There must be quite a number of cases in which rape is suspected and in which investigations are made and a person is suspected of committing an offence long before proceedings are taken. I am not now thinking of the case of a man who escapes, so to speak, and is not found until much later, because that is a different situation altogether. However, there may be doubt in the minds of the police whether the sexual act was consensual and it may not be until a considerable time later, perhaps until forensic tests have ben carried out on clothing and perhaps a search has been made for corroborative evidence, and so on, that the matter materialises in court. It may take a long time before it does so.

As far as I can see, under the provisions of the Bill, if it is enacted in its present form, there would be nothing to stop a man shouting from the housetops "I think I am going to be accused of rape by Mrs. Smith, who lives at …"— and from then giving the address and broadcasting it to the housetops.

If he does that before proceedings are instituted, as far as I can see he commits no offence. Once he has been charged, the blanket of secrecy and silence descends upon the scene, subject to the exceptions that we have already canvassed and in which we have been involved already on earlier amendments.

However, certainly this particular form of bringing proceedings does not seem appropriate to this kind of Bill. I should have thought that the Bill would be marginally improved by the deletion of subsection (6)(a).

I turn to Amendment No. 50, which would insert the words,

"or he is accused by way of a bill of indictment."

Again, for the benefit of the militants who no doubt have the worst possible view of my motives in this matter, one will see that those words, if anything, widen the scope of the case. It seems an oddity that these secrecy provisions can apply to a person who is charged before a court but that where one proceeds by way of a bill of indictment, that does not apply.

I notice that the Minister is nodding. I am beginning to wonder whether one of my amendments, at least, will be accepted today. It would make my day to feel that someone had actually listened to what I have said. This would strengthen a bad Bill, but strengthen it nevertheless. One would feel that it should call down the encomiums of the militant sponsors for doing so.

I see that my hon. Friend the Member for Hemel Hempstead (Mr. Corbett), the progenitor of the Bill, has now returned to his place. I do not think that he was in the Chamber when I mentioned bills of indictment in an earlier context. Perhaps I may remind him that this is a procedure for which we provide as an alternative method of bringing matters before a court. Perhaps I may quote to my hon. Friend the appropriate part of the criminal lawyer's Bible, "Archbold", which deals with this point and defines it in literally the first paragraph, which states.

"A bill of indictment is a written or printed accusation of crime made at the suit of the Crown against one or more persons. An indictment is a bill which has been signed by the proper officer of a court in accordance with the provisions of the Administration of Justice (Miscellaneous Provisions) Act, 1933.

By section 2(1) of that Act: 'Subject to the provisions of this section, a bill of indictment charging any person with an indictable offence may be preferred by any person before a court in which the person charged may lawfully be indicted for that offence, and where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection … have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly:

Provided that if the judge … of the court is satisfied that the said requirements have been complied with, he may, on the application of the prosecutor or of his own motion, direct the proper officer to sign the bill and the bill shall be signed accordingly'."

I think that that probably defines it adequately enough for the benefit of the discussion on this amendment, but I think it is already clear to the House that in their enthusiasm to get the Bill on the statute book, the sponsors of the Bill have made a "boob". I see that the hon. Member for Burton (Mr. Lawrence) looks a little surprised. I do not know why, but that seems to be the situation. I am interested to know whether the Minister has decided to accept these amendments. One of them, I suppose, is a deletion the other is an addition. I should have thought that between them they provide some measure of improvement in the Bill.

In an effort to be helpful, I should like to ask the Minister to look again at the wording in subsection (6)(b):

"he appears before a court charged with a rape offence".

The time lag between charging a man and his appearing before a court charged with the offence may be fairly considerable. If the object of the exercise is to seal all the gaps by which the anonymity principle can be breached, this is one gap that might be blocked. It seems obvious, on the face of it, that the words

"he is charged with a rape offence"

would suit the Minister's book more adequately than the present wording.

In response to that last matter, if the amendment is not pressed I shall undertake to look again at the wording to see whether all the gaps are covered. However, on the principle, I am bound to tell my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) that he is half right when he anticipates my reaction on this matter.

Concerning Amendment No. 49, I certainly would not advise my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) to accept its principle, because it would delay the beginning of the protection afforded by the clause, and I believe that that would be undesirable. My hon. Friend the Member for Hands-worth certainly made the point that before an information or a charge is laid, anticipatory noises can be made, but that seems no good reason for saying that even after a charge is made there should be a similar freedom.

Concerning Amendment No. 50, I accept the spirit of what my hon. Friend said.

Then why not accept the amendment?

Parliamentary counsel look at these matters, and, unfortunately for my hon. Friend, my advice is that the wording is not wholly satisfactory. If my hon. Friend agrees with my advice, I hope that he will agree not to press the amendment, upon an undertaking that a suitable form of wording will be introduced in another place in order to meet the point that he has validly put forward.

Is my hon. Friend giving an undertaking that it will quite definitely be introduced in another place?

As this is a Private Member's Bill, what I can undertake is that if my hon. Friend accepts my advice a suitable form will be prepared for introduction in the other place.

I am prefectly prepared to go along with that very helpful and sensible suggestion, and I hope that my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) will accept it.

In those circumstances, overwhelmed as I am by this unusual attitude of co-operation and with the undertaking that a suitable form of wording will be introduced in another place, I am prepared to withdraw the amendment. I hope that my hon. Friend has a majority of people in the other place who would support this amendment. I hope that he has done some head counting among the peers, otherwise he may find some difficulties there.

I beg to ask leave to withdraw the amendment.

I beg to move Amendment No. 58, in page 7, line 45, leave out

'or to be attributable to any neglect on the part of'.

In a sense we have gone over much of the argument involved in this but that does not mean to say that one should lightly pass over defects which appear in this amateur piece of lawmaking. We have already talked about the difficulties which arise in relation to inadvertent offending when I moved Amendment No. 46 to include the word "knowingly".

Again the same problem rears its ugly head because the principle of crime by negligence is a principle virtually unknown to English law. I find it odd that it should be introduced as a sidewind to this particular Bill. If I wanted to be unkind I should probably say that it was as a result of being introduced through the ignorance of non lawyers, otherwise it would not be there. Let me just read the effect of it. Clause 5(5) says—

"When an offence under subsection (5) of the preceding section which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly."

Is this an attempt to produce a mass trial of everybody, from the office boy up to the managing director or the chairman? That is what it looks like. It looks very much as if not only does that apply but the principle of crime by negligence is involved. I do not want to appear inconsistent with the remarks that I made earlier when we were discussing the penalties. I tried to draw a distinction, but failed to prevail upon the Minister to accept it, between what one might call inadvertent publication on the one hand and deliberate and malicious publication on the other.

In one sense the former is an example —I suppose it could be so construed—of being an offence committed by neglect or omission. If we are talking of that, what we are thinking of primarily is the position of somebody who through rank carelessness, doing something in their ordinary line of duty, should be on inquiry as to the possible risks involved in publishing the name of a person in relation to court proceedings. Therefore, it is just about right, but only just, that such conduct should be objectionable.

What seems to be behind this particular part of the Bill, and which I seek to delete, is an attempt to deem an officer of a body corporate to be guilty of an offence if the offence comes to be permitted merely by virtue of the fact that they hold an office. Put in shorthand, is this an attempt to introduce Royal British Bank v. Turquand company law into the criminal law. Is that what we are trying to do? Otherwise, why is it there?

Why should an act be attributable to a person? That is the most objectionable aspect. Either one commits an offence or one does not. One does not have an offence attributable to him. That is the problem which arises and, in a sense, I ridicule it by using the example of the ower. It now looks as if somebody who owned an organisation such as this in a proprietary sense might get off scot free because although he was a director, secretary or other officer of the body corporate, no one could attribute it to the shareholders.

I suppose the Minister will say "that is wholly in accordance with the principles of limited liability under company law at the moment. You can go against the shareholders of a company, or the torts, or the breaches of contract committed by the company, even if you are 100 per cent. owner of the shares until you happen to hold office as defined under company law." Therefore, it will be wrong for the shareholder, albeit the sole shareholder, to be deemed to be culpable in the same way as some officer remote from the offence itself but who nevertheless is an officer of the body corporate itself.

I take the view that we should have a proper companies Bill before the House, as I hope we shall. I intend to put down a lot of amendments to it to get away from the principle of limited liability altogether, which was introduced in the 19th century in totally different circumstances. It is time that shareholders were made, as it were, to earn their dividends in more ways than one for as long as we have a mixed economy. I hope that we shall not have such an economy for very long.

I think the hon. Gentleman is straying from the sense of his amendment.

I would not seek for one moment to argue with the Chair. Maybe I was permitting myself a few ruminations about the future situation. However, the Minister will say "We must deal with the situation as it stands here and now and as the law it". I am glad that my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) is in the House. Perhaps he can say why this provision was included. I think that he will find that it adds very little to the strength of the provisions. It is not necessary, and probably it is undesirable, because at the end of the day it increases the risk that perhaps somebody will be found guilty of an offence which he has not, in fact, committed. That is the basis of nearly all the objections to nearly every part of the Bill.

May I briefly support the strictures of the hon. Member for Birmingham, Handsworth (Mr. Lee). Mere negligence should seldom if ever be the basis of criminal law and in our view it is wrong here.

All I can say is that the recognition of both hon. Gentlemen of the wrongness of this matter is a rather fleeting recognition because my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) was accused of ignorance and, therefore, of defects in drafting by my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee). I find, upon looking at the statutes, that this is a perfectly normal director's clause in every Bill which seeks to deal with corporate liability for a criminal offence.

It is perfectly possible for both hon. Members to take issue with the generality of such matters, but I do not think that they can take issue with the fact that it is a common form of law. What my hon. Friend the Member for Hands-worth said about limited liability, and about company law generally, is irrelevent to this issue. It is relevant to the doctrine of the criminal law of a company.

I do not believe that there can be any justification for making this case an exception to the whole body of criminal law by absolving directors and officers of responsibility for neglectful behaviour. If we say that they can publish a name and be neglectful about it, yet escape their liability, we shall be going a great way to making a mockery of this Bill. This is why I believe that my hon. Friend should resist the amendment.

Surely there is a valid and practically definable distinction between neglect in the sense of carelessness or negligence—the concepts overlap—on the one hand and shutting one's eyes deliberately—in other words, behaving in a reckless way, not knowing or caring whether something has happened. As an illustration, one of the attributes of the offence of handling stolen goods is whether a person knows or believes those goods to be stolen. He cannot escape his criminal culpability if he deliberately shuts his eyes to that situation. That analogy is appropriate here and the amendment would have helped to correct that situation. In other words, my hon. Friend's reply is misdirected.

I would ask the Minister to look at this again. There is a difference between the liability which a company incurs as a result of a series of acts which are fraudulent and in which the approach to the handling of the company's accounts gives rise to details of criticism which in the end may or may not amount to fraud, and the situation which is envisaged here whereby a company, commits an act which would require a more specific intent than negligence if it were an individual person. Those are two different situations. It is not enough merely to say that because companies in one fraudulent type of offence are liable for negligence they must be liable for negligence in this matter which is of a wholly different nature.

With due respect, what I said did not relate only to the question of fraudulent behaviour or fraud by a company. It had to do with every statute and every way in which a company could be criminally liable for acts. As I have said, my researches show, as far as I can advise the House, that this is perfectly common form. Nevertheless, of course I will look at the words uttered in the debate to see whether my advice is wholly correct.

But I believe it to be a standard form. Certainly there is a distinction between negligence and recklessness, but what I am saying is that where other acts are committed for which the company and its officers are liable through neglect, it would be wrong to single out this Bill for treating directors or managers differently from how they would be treated in other cases. As I have said, I will make sure that my statements today are correct, but subject to that, there can be no objection in principle to the wording.

While I am happy to go along with that undertaking, the context in which we are discussing the amendment is that of the anonymity of the complainant. That is one of the sensitive parts of the Bill. The reason for this provision is that we want to underpin that anonymity for the complainant in every reasonable way possible.

I am not a lawyer—a fact for which my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) berated me—but it seemed to us that the concept in other areas of the criminal law of neglectful behaviour could be an added and important buttress to that anonymity provision. I hope that, on the grounds that this matter can be thought about again before the Bill goes to another place, the amendment will be withdrawn or defeated.

I am grateful that the hon. Member for Burton (Mr. Lawrence) has come to my assistance. I am sure that the Minister has spoken in good faith. I should be happier if he said in terms that a clarificatory amendment would be introduced in another place. Whether he gives me that undertaking or not, I do not propose to divide the House. I am not trying to filibuster. Since the sponsors intend that the Bill shall complete its passage today, there will be no opportuniy for further discussion here and the only legislaive way to deal with it is for some announcement a least to be made when the matter goes to another place. If my hon. Friend says that, I shall be much happier.

If what I have said is correct, no clarification is necessary, because the words are perfectly clear in themselves. It is only in the event of what I have said needing to be corrected that we shall need to consider clarification. I will advise my hon. Friend about the action he should then take in the other place.

In those circumstances, I beg to ask leave to withdraw the amendment.

I beg to move Amendment No. 43, in page 8, line 41. leave out 'conspiracy to rape'.

We now turn to a fundamental aspect of the law. I do not know how many times in the past few years and in how many different contexts the law of conspiracy has vexed the House and people outside who are concerned with the liberty of the subect. On 17th March this year the Law Commission published a report on conspiracy and criminal law reform, containing a draft Bill which would rewrite the law of conspiracy. It certainly needs to be done.

I should have thought that some of my hon. Friends, having seen the very word "conspiracy" in the Bill would want to take part in this debate. Many of them were exercised about the application of the law of conspiracy in the context of trade union disputes, and particularly in relation to the so-called "Shrewsbury Two".

I will clear up any ambiguity by saying that in large measure, although not wholly, I share the sentiments of those of my hon. Friends who have inveighed against the law of conspiracy and its application where substantive offences could have been prosecuted and where those substantive offences carried with them lesser penalties on conviction than conspiracy per se. One can see that this is an important matter, and I think that it will have to be discussed at some length.

I am glad to see the hon. and learned Member for Thanet, West (Mr. Rees-Davies) here. He has immense experience of the criminal law, and his knowledge of these matters far exceeds mine. He will therefore have a valuable contribution to make. He may not entirely agree with the sentiments I have just expressed—I would not expect him, from his point of the political spectrum, to do so. But I hope that he will have something to say. Trying to keep one's professional and political activities apart, I pay him the compliment of saying that he carried to the House of Lords the arguments in Shaw v. the Director of Public Prosecutions, a case of conspiracy, quite eloquently, and no one is better qualified to animadvert on the law of conspiracy.

If the law of conspiracy is to be changed, that is another argument for another day, but it makes no difference to the inclusion of these words in this Bill because, however the law of conspiracy is changed generally, the Bill will refer to conspiracy as it has been changed and redefined by the Law Commission. I make that point since the hon. Gentleman says that he is going to speak at some length. Could he deal with it in his remarks?

I shall do so in two ways. The hon. and learned Gentleman is falling into the trap of enunciating the insupportable doctrine that once Second Reading has occurred, the House is precluded from fundamental amendment. It is a novel constitutional proposition that is quite wrong, and I am sure that the Opposition as a whole will rue the day that any of their spokesmen, either carelessly —I do not want to be rude to the hon. and learned Gentleman—or inadvertently enunciated such a proposition, because the Leader of the Opposition will have her nose rubbed in it time and again.

Order. I have warned the hon. Gentleman before. He must confine himself to the substance of his amendment.

Thank you, Mr. Deputy Speaker.

The second objection is that the law of conspiracy is in need of drastic revision, that there are numerous objectionable aspects to it. Then why not start now? Quite reasonably, the hon. Member for Burton (Mr. Lawrence) put to the Minister just now an argument for at any rate modifying an aspect which he thought was disturbing, that is, the possibility of equating negligence with a criminal offence. He was met with the argument that it has always been there but that if, in the alternative, it is not there, the Minister will say something about it somewhere else. That is backing two horses, but it is a perfectly fair way for a Minister to deal with an awkward situation.

If the law of conspiracy is objectionable, as I suggest it is—although it has to exist in some form or another in certain circumstances—there is no better time than now to start changing it.

We are dealing with a novel situation. This Bill is novel. Its rationale is to confer an element of privilege on witnesses quite unique in our criminal law—not that witnesses have not, rightly so, had their names excluded from publication before. But the Bill introduces the novel concept of a statutory privilege in relation to the criminal law of a kind unknown in English criminal history as far as I am aware.

If this is a novel Bill, why should we not have some other novelties in it as well? We should not be inhibited, as this is a novel Bill, from making novel provisions in relation to any aspect of it and the objection of the hon. and learned Member for Blackpool, North (Mr. Miscampbell) is ill-founded.

One can think of some instances where, as a side wind of legislation, some quite startling innovations have occurred, and there are circumstances in which they have been insupportable. I readily concede that. But here we are dealing with the criminal law, and conspiracy is one of the central aspects of the criminal law.

Perhaps I should begin by reading out the definition as given by the Law Commission of the present state of the law of conspiracy, whether it applies to rape, murder, or fraud or any other aspect of the law. Page 5 of the Law Commission's Report on Conspiracy and Criminal Law Reform states:

"Conspiracy differs from other inchoate offences (whether common law or statutory) in a number of ways. The most important difference lies in the nature of the objective which will make the preparatory step in its direction criminal. In all inchoate offences except conspiracy the objective must itself be an offence. Conspiracy goes further. Agreement to commit an offence is, of course, one instance of the crime of conspiracy. However, in addition, an agreement to effect some "unlawful" object, not itself an offence if committed by one person, can amount to the crime of conspiracy. This is because of the wide meaning which has been given to "unlawful" in this context. The exact extent of these "unlawful" objects (other than crimes) is far from clear. A person remains liable to be prosecuted for conspiracy even if the object of the agreement has been achieved. The extended meaning of "unlawful" thus leads to the result that, so long as two or more combine, they can, in certain circumstances, be punished for doing something which would not be criminal if one of them alone had done it."

The words my hon. Friend is seeking to delete are "conspiracy to rape". Clearly, that is a criminal offence. It is not the same as a conspiracy to carry out something which may be unlawful. If my hon. Friend pursues his arguments, he will fall foul of what was rightly said by the hon. and learned Member for Blackpool, North (Mr. Miscampbell)—that the law exists as it is. If a draft Bill is introduced to deal with conspiracy the rights and wrongs can be considered, but to alter the law now and delete those words would be utterly wrong.

I remind my hon. and learned Friend, whose experience in these matters is longer than mine, that the whole concept of conspiracy to rape can be and generally is a complete nonsense. At best, the words in the clause are otiose. At worst, they are an absurdity as well as a further recognition of what in my submission, and I hope in my hon. and learned Friend's submission, is a profoundly objectionable attribute of English law. One of the peculiarities about conspiracy is that two or more persons can commit the offence by doing acts which, if done singly, would be lawful or at worst tortious. One wonders therefore, what value there is in this.

I now turn from the general to the particular. Rape cannot be committed, cannot exist as an offence, unless and until the victim has said and meant "No". We have not attempted, even in this Bill, to reverse the decision in Morgan v. Director of Public Prosecutions. That piece of oppressiveness has at least been spared us. Therefore, the victim must have said "No" in a way which, it can be proved, beyond reasonable doubt, the pursuer must have known was meant, or behaved in such a manner that the defendants could be left in no doubt of the victim's refusal. After all, sexual relations, whether consensual or not, are not always conducted with strict formality.

How can there be an offence of conspiracy to commit rape if a number of persons consort with one another in a certain way? One may have decided views about the unpleasantness of the circumstances and one may have a low opinion of their moral attitude. But what is needed is something more than internal mental intent but less than an act directed against the intended victim. What they are consorting together for in this context is to have sexual relations with somebody. There may have been a horrifying example in the Central Criminal Court this week. I am not trying to make light of the matter. I am trying to prevent innocent people being victims.

The example my hon. Friend has given is absurd. If a number of people agree to rape a girl, there is a criminal offence. If they merely agree that sexual relations shall take place in some lesser degree, it is a matter for the judge and jury to consider. It is a question of degree. My hon. Friend must not confuse the issue in this absurd way.

My hon. and learned Friend is wholly wrong. It is not a matter of degree. Either the offence is committed or it is not. There is no grey area under the law. One does not commit a half offence. One may commit a different kind of offence or a lesser offence. There is a whole host of gradations of certain kinds of offence against the person, from common assault, through assault occasioning actual bodily harm, assault occasioning grievous bodily harm and assault under the Offences Against the Person Act 1861 all the way up the scale to attempted murder. But that does not apply here.

The hon. and learned Member for Hackney, North and Stoke Newington (Mr. Weitzman) is partly right. I think that what he is saying is that conspiracy to rape, if it were ever indicted, is an agreement between two or more parties that they propose to rape a certain person, whereas aiding and abetting and inciting to rape is a somewhat different charge. But what the hon. Member for Birmingham, Handsworth (Mr. Lee) is entitled to ask the Government is whether they know of any case in recent years in which people have been indicted for conspiracy to rape. Those of us who have many years' experience have not seen such an indictment, probably because it would be conspiracy to commit an offence, whereas in almost every rape case there has actually been the rape, which distinguishes it from other conspiratorial cases.

I am very much obliged to the hon. and learned Gentleman. That is the whole point of the matter. Where the case stays as a conspiracy, it is unprovable. No doubt there are unhappily cases where people of a positively sadistic and perverted attitude consort among themselves and in the privacy of their own meetings say "We'll rape a young girl", although I am not sure how one would prove it. But the great majority of the cases that present themselves are ones in which people are conspiring to commit a sexual act. The element of rape arises, if it arises at all, only when they waylay the girl concerned. When that happens one is faced with a substantive offence—an attempt to commit rape or, if the offence is completed, rape. Therefore, the law is an absurdity.

2.0 p.m.

There could be a situation in which, following suspicion of activity by a group of youths, or indeed older men, deciding together to embark on an offence of this kind, somebody listening in with the aid of a tape recorder could be present while such a matter was being discussed and where there was a possibility of the commission of a sexual act of a non-consensual character with a victim.

In those circumstances it is possible that evidence could be produced on which a jury, properly directed, would convict of a conspiracy to rape. In such circumstances it would be possible for the defendants to say "We meant it all as a joke. We did not do it because we did not mean it seriously". In that situation it would be difficult for a judge to direct a jury in any other direction than that it would be unsafe for that jury to convict.

That is not the same as a situation of a murder without the body—in other words, where somebody disappears in circumstances where everything points to murder. The courts are reluctant to convict in such cases, but they can convict and have done so. That is not a properly analogous situation.

There is another reason why we should seek to delete this provision. The Bill names a number of offences as being rape offences and, although the wording of Clause 6(2) speaks only of "conspiracy to rape" rather than of conspiracy to commit a rape offence—I suspect that this is another piece of loose drafting—there would be further difficulty in deciding whether a conspiracy could apply where the so-called conspirators were seeking perhaps to commit no more than an act of indecency. That is one of the matters that is defined in an earlier part of the Bill as a rape offence.

The situation is not confined to rape. In the situation of somebody having listened in to such a conversation with the aid of a tape recorded, I suppose that there could be a conspiracy to attempt to commit a rape. Indeed, so far as I can see, there can be conspiracy to do almost anything—in other words, people can conspire at large. How will the law, as amended, apply to acts against public decency or outrages against public morals? I notice that there is a redefinition in the Bill of what used to be offences against public morals falling within the Vagrancy Act 1824. There are certain loose ends with which we must deal.

I turn to the objections raised by the hon. and learned Member for Blackpool, North. He will know that the report of the Law Commission has been in existence since 17th March, but nobody so far has indicated when the draft Bill is to be introduced, if at all. Judging by the legislative log jam which is likely to prevail in the coming parliamentary Session in face of the devolution measures, the measure related to elections to the so-called European Parliament—that peculiar Common Market thing—and a measure to tidy up companies law, we shall have a very busy legislative time on the Floor of the House. Obviously, constitutional measures have to be dealt with on the Floor and that will take a long time. Therefore, the prospect of an early tidying up of the conspiracy and criminal law reform legislation is somewhat remote.

Although the law in that respect is badly in need of revision, it cannot be said that we shall have an early end to that situation. By way of analogy, any attempt to change the composition of the other place often meets a certain degree of opposition—

Order. For the fourth time, I must ask the hon. Gentleman to keep to the sense of his amendment.

Perhaps I had better leave their Lordships where they are for the moment. I was seeking to point out that these provisions are undesirable for many reasons.

Unfortunately, the Minister was not in his place when the hon. Gentleman invited him to say whether in the records of the Home Office there was any case at all in recent years involving a charge of conspiracy to rape. When there is not a participation, that can only arise as a separate charge. If there is a participation, it would either be joint rape, aiding and abetting rape, or inciting rape as an observer encouraging the offence. The Minister might like to intervene to say whether we are seeking to deal with something that is never likely to occur.

I am obliged to the hon. and learned Member for Thanet, West (Mr. Rees-Davies). For the moment I had forgotten that point. He is quite right. I suspect that the circumstances in which that type of offence occurs are extremely rare. I dare say that the Home Office has various bits of information winging towards the Minister and that he will be able to answer the point in due course. I suspect that charges involving a conspiracy to rape are as rare and would be as difficult to prove as, for example, the offence of attempted manslaughter. Whoever hears of a charge of attempted manslaughter being preferred in an indictment? The charge is either manslaughter or some lesser offence under the Offences Against the Person Act 1861.

As the hon. and learned Gentleman rightly points out, we have here a situation in which the offence is complete, in which case rape is charged, or it is not complete, in which case attempted rape is charged. Where more than one person is involved and it is such as to amount to a joint enterprise, the substantive offence can be charged. There have been many instances, very properly, in which more than one person has been jointly charged with a substantive offence, because they have all been guilty, either directly or constructively. The law is perfectly adequate to deal with this situations without the complexities and wire crossings of the law of conspiracy.

There are other objections to the law of conspiracy and the Minister knows of them. It is true to say that the law of evidence on what is admissible with regard to any one defendant are much more lax in a conspiracy charge than they are with regard to a substantive offence. A number of matters which should be regarded as coming within the hearsay rule in relation to a substantive offence are not so regarded in a conspiracy charge and can be put before a jury. Although one can understand why —because the whole essence of conspiracy is that it is a plural offence—there is bound always to be difficulty.

A well-known illustration of this, to those of who know the courts, occurs time and again, and is said with absolute sincerity, when the judge addresses the jury. I am sure that in many cases it is totally artificial and unintelligible to a jury. A judge will say to a jury, "What Mr. Snooks says when he is interviewed by the police is evidence only for or against Mr. Snooks and not Mr. Soaps. What Mr. Soaps says when he is interviewed by the police is evidence only against Mr. Soaps because Mr. Snooks was not present when Mr. Soaps was interviewed and Mr. Soaps was not present when Mr. Snooks was interviewed."

2.15 p.m.

I am sure that many juries listening to this regard it as mumbo-jumbo. In any case, they hear what is said. If one defendant says about the other something which is injurious or damaging, jury members probably shrug their shoulders and say, "It is all a game made up by the lawyers." That is difficult enough with a number of offenders tried jointly together on a substantive charge. In that case the judge is under a strict obligation to make those matters clear to the jury. One only hopes that the jury takes them on board. When the law of conspiracy applies, the same degree of stringency may not wholly apply. This is yet another reason why the invocation of the concept of conspiracy is something that ought, where possible, to be discouraged.

I look forward to the day—I do not suppose for a moment that the Minister of State will be able to name it this afternoon—when in one form or another the provisions of the Law Commission are implemented, not only as regards this Bill but over a very much wider area. I am sure—I would lay a bet with my hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman)—that when my hon. Friend gets up to answer me he will not be able to give me the date when the Bill is to be introduced implementing those provisions.

If I am right about that, now is the time to start. Now we can go ahead and begin to make progress in putting right an aspect of the law which has worried politicians, libertarians, the National Council for Civil Liberties and judges. I know of a number of cases when judges have been rightly annoyed that conspiracy charges have been brought when it would have been perfectly adequate for the interests of justice to lay a substantive charge alone. If one may use the analogy of the "Shrewsbury Two" one of the causes of the furore there was that the substantive matters were left in limbo while the conspiracy count was pursued in the alternative. There is a worse situation than that.

I preface my intervention by saying that there are no recorded cases of conspiracy to rape. While I do not want to be taken to be assenting in any way to the general point my hon. Friend has been making, on the practicalities of the matter it must have little effect whether there have been such cases. I have consulted my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) and, with his agreement, I will invite the House to accept this amendment.

I am grateful to my hon. Friend and I will draw my remarks very shortly to a close. It is gratifying to discover that one's views prevail, at any rate in one way. If there are two matters pursued side by side it confuses the jury. The Minister understands that and accepts that it is another reason, possibly the most important one, for accepting the amendment.

This situation applies commonly in less serious matters, when a person is charged with careless driving, driving without due consideration, dangerous and reckless driving. He can be charged five or six times over for the same offence. Those are less serious matters than these but it is a highly objectionable situation. I am glad that the Minister has prevailed, behind the scenes, upon the sponsors of the Bill. It is bad to have a principle of cumulative charges in matters of this gravity.

My final objection is that the penalties on a conspiracy charge are at large. It is a little academic here because the maximum penalty for rape is so severe. At least it is defined.

In conspiracy matters, the penalties are at large, and that is not the least serious reason why the principle of conspiracy is bad. The principle of conspiracy in relation to this Bill is bad and, to the extent that even at this late stage the sponsors of the Bill are prepared to mitigate it by removing this objectionable aspect of it, I feel somewhat gratified.

It must be a strange situation when a Bill reaches its Third Reading and the persons who have committed their names to it have not a word to say on the subject, not even by way of a formal moving of the Third Reading. Indeed, I am minded to wonder whether a point of order arises, since the sponsors are not here formally to move the Third Reading, and whether the Bill will fall.

I can put the hon. Gentleman's mind at rest on that point. Anyone may formally move Third Reading.

I am grateful for your guidance, Mr. Deputy Speaker. However, it is strange when those who believe in this Bill are not in their places to speak in support of it.

On a point of order, Mr. Deputy Speaker. I am one of the sponsors of the Bill and I am right behind my hon. Friend—I mean physically, of course.

I hope that my hon. Friend is behind me argumentatively, too. However, the proposer who has made all the song and dance about it all along is not here; nor are the more raucous supporters who manifested themselves at the end of the day when last this matter was considered.

I believe that this Bill is a bad one and that it will occasion a great many acts of injustice. I suspect that it arises out of a laudable but totally misconceived enthusiasm and that what has happened is that, quite rightly horrified by a number of genuine rapes that have occurred—and there have been some pretty horrible ones in recent years—they have allowed that enthusiasm to run away with them and, in common with a lot of people who allow their hearts to run their heads, they have produced a piece of legislation which, whether they like it or not, will endanger the liberty of a number of people.

One of the most disturbing aspects of the law—and it is one for which there is no answer under any legislation—is that by its nature it is an offence for which there are unlikely to be, except in the case of rapes committed by a number of persons, more than the victim and accused person present. Of their nature, sexual acts are not likely to be committed in public except in a Roman orgy and least of all when they may be of a non-consentual kind.

If that be the situation, it will always be difficult to find reliable, detached and independent corroborative evidence. By restricting the scope of cross-examination, as the Bill does in Clause 2, the dangers of wrongful conviction are bound to increase.

There are, after all, basically two defences in a rape situation. One is I did not do it, and it was someone else". The other is "She consented". The first must depend upon identification and, where the complainant and the defendant are unknown to each other—this will apply especially if the person is guilty but it may apply in other instances— all the hazards of identification will come in a renewed and intensified form. In other contexts in recent years we have had case after case of wrongful identification. In some cases people have languished in prison for years before being vindicated and then often only by accident. I am thinking not only of rape but of other situations, and it is only this summer that a series of cases have been quashed in the Court of Appeal because the Court of Appeal decided that the matters were such that they could not be relied upon.

I suspect that behind a lot of the people who are supporting the Bill—certainly the more silly and unthinking of them—is that, because they want to convict and punish people of rape, they want to bend the rules and make it easier to convict—never mind whether someone innocent is convicted. I suspect that that is behind the reasoning of the sillier of those who are sponsors of this Bill. It is a wholly deplorable situation in which the Home Office sits on the fence. It is an inelegant, unheroic and unhelpful posture which a Government Department ought not to have.

The record of the Home Office in matters of civil liberties, heaven knows, is undistinguished and has been under one Government after another. Its attitude of moral cowardice is almost as bad as that which it has shown in matters of race relations until quite recently. I suspect that when this Bill is through we shall have another example of it in relation to the licensing legislation—legislation which I support unenthusiastically. But I share with the objectors the feeling of scorn that the Home Office passes the buck to private Members to deal with these matters.

I cannot believe that if the principles involved in this Bill had emanated from a Government Department some of the obvious pieces of legislative carelessness and legal ambiguities which the courts will have to work out for themselves would have appeared in it. I have in mind the provision which we discussed earlier about crime by negligence, and the hon. Member for Burton (Mr. Lawrence) supported me in objecting to that.

I cannot believe that if this Bill had emanated from the Home Office we would have had the asinine provisions which are in it now. It took a lot of talking from me to drag out of the Home Office the deletion of the reference to conspiracy and to that extent the Bill has been improved minutely. I suppose that we must be grateful for small mercies because small mercies are the only ones that Back Benchers ever get, but the situation is still bad.

If, as was reported the other day, somebody makes accusations against other persons of a sexual attack and these accusations are unfounded, defence counsel should have the right to cross-examine on these matters. It should be no part of the duty of Parliament to hinder the right of cross-examination. Clause 2 is a fundamental intrusion on the rights of advocates before the court in protecting the liberty of the subject.

I only hope that when this Bill reaches the other place Peers will seek to change parts of Clause 2 for the better. If that happens, for once I shall be able to say something nice about the other place. Up to now I have always regarded it as a kind of anthropological zoo. However, if it can improve this Bill, it will serve a useful purpose. I hope it will not chicken out, as it did over the EEC legislation.

I expect that we shall have a very strange situation arising over publication. Any acquitted person who really wishes —one can think of instances where such a person will wish quite rightly to parade the name of the disbelieved accuser before the public—has his remedy in taking out a writ for malicious prosecution. That will be public news, printed in the papers and people will know all about it.

It is a very rare civil remedy and a very difficult one to pursue successfully to a conclusion, and there are many stages before a conclusion can be reached. However, one would not have to go that far with the action because the object of the exercise would be to get the name of someone in the Press, and it may well be that the perjuror would be exposed very early on. The wrongly accused person need take only a number of fairly preliminary steps in order to defeat the Clause 4 provisions.

There are of course instances—as in the case of juveniles—where, right or wrong, honest witness or dishonest witness, it is right for over-riding reasons of public policy that names should not be disclosed. That apart, I see no justification for Clause 4 in spite of he Minister's somewhat artificial examples which he sought to produce in order to rebut my amendments.

For the rest of the Bill there is very little to be said. One hopes that when Parliament passes a nonsensical piece of legislation such as this, the judges have sufficient ingenuity to whittle it down. There are, and I choose my words carefully, many people who say "Thank God for Lord Denning" in respect of civil law. One hopes that the criminal side of the Court of Appeal and the higher courts will show the same constructive ingenuity in mitigating the damage which could be done by this well-intentioned, but wholly misguided and silly piece of legislation.

If this Bill becomes law, a perjuror in a rape case may well be able to gain protection from public contempt and condemnation. A witness who gives evidence against a gangland murderer can have his name disclosed. I find it incredible that the Guardian felt prepared to give the name of a man held in a cell under constant threat of his life for giving evidence against some of the most dangerous criminals in this country. A newspaper which is so irresponsible that it publishes the name in that case will not be able to publish the name of a neurotic woman who fantasises about a rape. She can be protected, and for that reason I intend to divide the House.

Earlier this week there was a very highly publicised rape case in which a number of people were convicted of the rape of a girl and one of them was acquitted because he was under the age of 14.

He was not acquitted.

He was acquitted of rape because under English law the presumption is that one cannot be convicted of rape under the age of 14. This is a very curious presumption which suggests that a boy under 14 is physically incapable of sexual intercourse. That is a prepostrous ground on which to assert that he cannot be convicted of rape.

I moved an amendment in Committee to remove that presumption but it was rejected. I hope that the House of Lords, particularly in the light of the case earlier this week, will see fit to look at that particularly silly presumption in English law which has no parellel in Scottish law and make an amendment to improve the law.

My hon. Friends and I tabled the motion on the Order Paper on Third Reading in order to enable a public debate on this stage of the Bill and to air the broad nature of our misgivings about it so that the House of Lords, if it has time to consider the Bill at all before the end of the Session, might take note of what we have said.

Our criticisms are of substance but lest the hon. Member for Birmingham, Handsworth (Mr. Lee), who has laboured long and assiduously to stop this Bill, should feel that he must take the opportunity to make a party political point about not pressing our objections to a vote, I would say that this opposition has not been and never will be, in the remaining short time in which we remain in Opposition, opposing simply for opposition's sake.

Tell that to Maggie.

Our Opposition has always been responsible, and we are being responsible in this debate.

There seems to be no valid justification for delaying the next business even for 15 minutes. That time will be valuable for dealing with the next Bill, which is I believe relatively non-contentious. Because the Bill we are now dealing with will have to face further legislative proceedings, and since in due course the House of Lords may not have time to consider the matter and the Bill might lapse, there would be less justification for delaying it by irresponsible opposition, however strongly one might feel about parts of the Bill.

The Opposition's approach to the Bill can be summed up as unenthusiastic. Clause 1 defines the meaning of rape and is unexceptionable in that it is no more than a restatement of the existing law which with one exception changes nothing in the practice of the law. In a sense therefore it is unnecessary, and I only hope that the public are not led to feel that because we are passing a Bill amending the law of rape, in essence the definition has been changed to make the law more severe or to make it more likely that those accused are convicted.

The public outcry which caused the Heilbron Committee to sit and the Bill to be produced has tailed off because the Cambridge rapist was arrested, the Committee was set up and reported and a Bill is before the House. The public doubtless feels that in future all will be well with the law of rape because we are doing something about it here. My hesitation is that, like so much of legislation that we pass, the Bill is little more than a placebo, and where it may be thought to change the law in substantial respects it changes it very little.

The exception to the general principle that in definition the law is unchanged is in subsection (3). We see there a very serious danger in removing a qualification which hitherto existed that one cannot produce a charge of rape against the husband. There is a serious danger of the hateful and vengeful wife crying rape and using that as an excuse to rid herself of the unwanted husband. We have the strongest reservations on that score.

Clause 2 gives us strong misgivings if it is intended to make it more difficult for an accused person to be acquitted by placing restrictions upon the evidence which he can adduce at trials for rape. That is a potentially very dangerous proceeding, particularly since it applies different rules from those which normally apply in criminal cases. It takes the judgment about the relevance and strength of evidence away from the jury, which hitherto has had that power in rape cases, and concentrates it in the hands of a single judge, who may or may not be the fairest forum to decide that issue. If we thought that judges were always the fairest forum to decide these issues of fact we would not have had juries at all. As has become clear during the Committee proceedings, we have considerable hesitation about the loss of this right to adduce evidence.

We have further misgivings about Clause 4, particularly in so far as the defendant has to be protected by the cloak of anonymity. Of course, we see the logic of protecting a defendant if the complainant is protected, but many of us would rather that there was no protection for either party. We genuinely view with some disquiet the fact that we are introducing here an element of private justice not open to the usual public scrutiny into a branch of the law which in other respects ought to vary little from the general principles of our criminal justice.

2.45 p.m.

Our approach to the Bill is concerned that the usual safeguards which apply in our criminal law for protection of the accused are to some degree being undermined here and that although the public may feel that it is a good thing to legislate again on rape and may feel that some of the steps in the Bill improve the law, it is doubtful whether, if the public fully understood all the parts of the Bill, it would wholly like all the fetters being placed upon the accused which may well make the conviction of an innocent man more likely.

The usual safeguards which have satisfied the public over the years and have not been subject to the greatest criticism —the burden of proof being upon the prosecution, the judge's power to decide whether cross-examination is relevant, the fact that juries are the judges of issues of fact, and the fact that special rules to protect the accused are written into our law—are here being reduced to some extent.

Experience has shown that some women have a propensity to make false allegations in some circumstances. Since these allegations are easily made and difficult to disprove, the law has always paid a special regard to sexual offences and has required, for example, corroboration. We are unhappy that the Bill reverses that approach. Instead of giving extra care to the protection of an accused in a sexual offences case, the sponsors of the Bill have deliberately and intentionally in some respects reduced the need for care.

We therefore consider that this is a very substantial danger because it might result in some being unjustly convicted.

We shall not vote against the Bill, as I have explained, but I hope that these matters have been registered so that the other place may consider them more fully. The Upper House in a matter of this kind is a pre-eminent institution for considering changes in the law. It consists of a very large number of experienced and wise practitioners in this branch of the law. They have the time and the opportunity to consider the details and the principle much more fully than perhaps we have in this Chamber.

Although we do not agree wholly with the conclusion of the Heilbron Committee, we pay a substantial tribute to its work and I congratulate the hon. Member for Hemel Hempstead (Mr. Corbett) and his fellow sponsors on having produced this Bill. I hope that before it is dealt with in another place there will be further improvements.

Some of us, however, on this side expect that this Bill will never see the light of day because of the weight of the legislative programme and that it will go the way that the Road Traffic (Seat Belts) Bill seems likely to go and not return here this Session.

I intervene for a few moments because it would be wrong not to congratulate my hon. Friend the Member for Hemel Hempstead (Mr. Corbett) and all the sponsors who have done a magnificent job during all the stages of this Bill to set it on its way. It may not be a tremendous earth-shattering measure, but it will be extremely useful in clearing up misconceptions which may arise and it will make what has become trial by ordeal for many women with a legitimate cause for complaint an ordeal in which they have to suffer only that which is necessary for the trial of the offence and not an ordeal of extraneous matter and public opinion.

The hon. Member for Burton (Mr. Lawrence) spoke about his anxieties on Clause 1(3). He will know that this provision was deleted on Report and I hope that he will agree that the record should be put straight so that no undue alarm is caused.

My hon. Friend the Member for Islington, South and Finsbury (Mr. Cunningham) raised the question of age. This is being considered by the Criminal Law Revision Committee, assisted by the Policy Advisory Committee on Sexual Offences. I think that is the best way of dealing with the matter.

I should tell my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) that the Home Office welcomes the Bill. It is not sitting on the fence and nor does it believe that the Bill is a product of emotion. It is a product of the Heilbron Committee and if it is right to pay high though not unquestioning tribute to the depth of its investigation and conclusions, it is right not to praise it on the one hand and denigrate it by rejecting its conclusions on the other. It is because the Bill gives just treatment to the recommendations that I hope that the House will give it a chance to proceed further.