The Lord Chief Justice, Lord Bingham of Cornhill, yesterday laid down an amendment to the Youth Justice and Criminal Evidence Bill that would allow rape victims to be questioned by defendants. This would occur only if judges deemed it necessary for a fair trial.
A further amendment challenges the Bill's ban on barristers raising a woman's sexual history in a rape case, another element with which Lord Bingham is known to have "serious misgivings".
The Home Secretary, Jack Straw, has frequently promised better protection for rape victims in court, and is understood to want to defend the Bill in its entirety.
The measures followed two high-profile rape trials in which the defendants represented themselves and humiliated their victims in open court.
Both Ralston Edwards and Milton Brown were convicted, but women's groups and Labour MPs were appalled that judges had not intervened in their respective trials.
Yet Lord Bingham points out that since the two cases, the Court of Appeal has issued very strict guidelines to prevent the incidents happening again. No similar cases have since occurred, he asserts.
His amendment will insist the ban on cross-examination will not be enacted unless there is evidence that the guidelines are failing.
Similarly, the second amendment will give judges the discretion to allow questions about the rape victim's sexual history to be raised only if it is seen as crucial to the interests of a fair trial.
The Bill faces its first key test on Monday when the amendments are heard in the Committee Stage in the Lords, and the Government is likely to face substantial opposition from the Lords' "barrister's lobby".
Lord Bingham and his supporters hope that the amendments will force the Home Secretary to "think again" about the measures but, if there is no change, the Government will face a serious Lords revolt. Tory peers are understood to be prepared to back the amendments if the Government refuses to back down.
Baroness Mallalieu, who laid down the amendments with Lord Bingham, said that they aimed to restore to the judiciary the discretion to make rulings in rape cases.
Baroness Mallalieu, a practising QC, said that the Government was legislating in response to public perception of a problem that rarely occurred in reality.
"What the Bill proposes is unnecessary because there have only been two cases where there has been a problem. It is a really drastic step to deprive somebody in all circumstances of the right to cross-examine someone. Just occasionally, it helps to get at the truth.
"Similarly, I've never seen a case where a judge has allowed unnecessary questioning of an accuser's sexual history. The rules are already very strict.
"I get Women Against Rape and other people phoning me up, but of course we are all against rape. It's just that we don't want to make the law so harsh that juries start acquitting because they think the defendant hasn't had a fair trial."
A spokeswoman for the Home Office pointed out that the Bill was going through the early stages of its passage through Parliament.
"The Government will listen to all the comments made, but the Bill as currently drafted reflects Government policy," she said.Reuse content