My Lords, in this group, I will speak only to Amendments 78 and 79, in the names of the noble Baronesses, Lady Thornton and Lady Hamwee. They call for free independent legal advocates and free independent legal advice for victims of rape, and I support the principle behind them. I take the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, that they do not
necessarily talk about advocacy in court, although Amendment 78 does talk about free independent legal advocates.
The noble Baroness, Lady Thornton, said that the amendments will not affect our adversarial system; nor will they affect it adversely. However, I hope that they will, if adopted, have an effect by ensuring that the interests and voices of victims are considered and heard throughout the criminal justice system, and—certainly for the purposes of these amendments—more comprehensively in rape cases, and that will be wholly beneficial.
These amendments lie at the heart of what this Bill is all about, which is to bring about a transformation in the way we look after the victims of crime. We have moved, but far too slowly. When I practised in the criminal courts a long time ago now—and this is not intended to be an exercise in reminiscence—as both prosecutor and defender, we were almost encouraged to take pride in the structure of criminal cases as a contest between the state—the Crown—represented by the prosecution’s lawyers, and the defendant, represented by independent barristers and solicitors, generally paid for by the state. The adversarial system was all. The victim, usually called the complainant—or in financial cases, the loser—was universally treated as no more than a witness, liable to be harshly cross-examined almost without restriction, and deserving of no extra consideration on account of the ordeal suffered as a result of the crime.
4.45 pm
My noble friend Lady Hamwee spoke of the treatment of victims as bystanders, and she was right to do so. That was, and has until recently, far too often been the approach. Though we have come a long way since then, it is nowhere near far enough. In no type of crime has the lack of progress been so severe, so obvious and so harmful as in rape. We are all well aware of the depressingly low rates of reporting for rape, the very low conviction rates, and the testament of literally thousands of victims who have been tormented by the trauma of reliving the offences against them in undergoing the criminal trial process.
Then there has been what the noble Baroness, Lady Thornton, accurately described as credibility trawls, which are intrusive and demanding. The noble Baroness, Lady Bertin, also spoke persuasively of such credibility trawls and the attrition rates that result, in part, from them. The noble Baroness, Lady Newlove, described an ultimatum to victims of sexual violence: the choice between justice and the right to a private life. All these injustices—for that is what they are—demonstrate our failure to achieve fair or even halfway acceptable treatment and outcomes for rape victims.
The Bill has as its central purpose the improvement of the way we treat victims of crime. The victims’ code is about guaranteeing rights for those victims, but the rights we spell out in the code, to which we are attempting by the Bill to give some force in statute, cannot be guaranteed if individual victims do not have the right to the advice to understand them, and the right to the voice to demand and enforce them. In no area of crime is this more important than in the case of rape.
Amendments 78 and 79 seek simply to give victims that advice and that voice. Free, independent legal advice and representation for victims are essential means by which the Bill may achieve the culture change we seek. It is for that principal reason that I urge the Government to accept these amendments, or something very much like them. So many have spoken of putting the protection and interests of victims at the heart of the criminal justice system. Perhaps this is a reminder that the adversarial system does not alone produce a system that is fair.
Limiting these provisions to rape victims may mean that these amendments can only be a start, but they are a start in the right place, and they may point the way towards the change we all seek.