Amendment moved [this day]: No. 22, in

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

to end of line 15 and insert—

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

(b) otherwise, to imprisonment for life.'.—[Mr. Malins.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Several hon. Members rose—

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

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

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

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

I was quoting the previous year.

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

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

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

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

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

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

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

I did my best. [Laughter.]

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

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

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

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

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

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

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

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

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

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

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

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

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.