The relevant provisions of the 1976 Act have now been repealed by ss41-43 of the YJCEA 1999. Section 41 (1) puts a significant restriction on the way the defence can conduct its case where the defendant is charged with what the Act calls a ‘sexual offence’. This is defined in s 62 of the 1999 Act and includes, among other offences, rape, indecent assault, unlawful sexual intercourse and any attempt to commit these offences. The new Act applies to a wider range of offences than the Act of 1976. Paul Boating MP identified the purpose behind ss41-43 of the Act: ‘….Sexual history should be admitted only in very limited circumstances where it is really relevant to an issue at trial’.
2. Section 41 (2)
Section 41 (2) makes it clear that the court will not grant leave, unless it is satisfied that the evidence is of a kind specified in s. 41 (3) or (5), and a refusal of leave might render unsafe a conclusion of the jury on any relevant issues in the case. These are not alternative conditions; for leave to be given, both must apply. The expression any relevant issue in the case is defined by s 42 (1) (a) as any issue falling to be proved by the prosecution or defence in the trial of the accused.
3. The scope of sub-s (3)
The sub-section distinguishes between cases where the evidence or question in cross-examination relates to a relevant issue, but that issue is not one of consent, and those cases where the relevant issue is one of consent. The expression issue of consent is defined in s 42 (1) (b) as ‘any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged. So, if the defence is not that the complainant consented, but that the defendant believed that she was consenting, the sole test is whether the evidence or question relates to a relevant issue in the case, and the restrictions imposed by s 41 (3) (b) and (c) will not apply.
4. The test of relevance:
However, the test of relevance where such a defence is put forward has been strictly applied. In R v. Barton, the defendant wanted to call evidence of the complainant’s sexual experiences with other men to establish the foundation for that belief, but the trial judge refused leave. The Court of Appeal upheld this decision and drew a distinction between belief that a woman would consent if asked, and belief that a woman is consenting to a particular act of intercourse. If a defendant wishes to establish that he was getting the wrong message from a complainant’s responses, the evidence will have to be relevant to that issue.
5. Sub-section (3) (b):
Sub-section (3) (b) allows the court to look, but only to a limited extent, at the context in which the event which is the subject matter of the charge is alleged to have taken place. The bill originally provided for a 24 hour framework on either side of the alleged offence. Lord Williams said, the sub-section was not intended to include evidence of behaviour three, four or five days before the alleged offence. So if a complainant had had sexual intercourse with four different men a few days before the alleged offence, that evidence would not be admissible to support a defence of consent.
6. At or about the same time:
The expression ‘at or about the same time’ occurs in s 41(3) (c) as well, and in R v. A, the House of Lords considered its interpretation in that provision. It was alleged that the defendant had raped the complainant on 14 June 2000. The defendant’s case was that the complainant had consented. He wished to adduce evidence that they had had consensual intercourse over a period of time that began approximately three weeks before 14 June, and that the last instance of consensual intercourse before that date had taken place approximately one week earlier. One of the questions that arose was whether any of those acts of intercourse could be said to have taken place ‘at or about the same time as’ the incident on 14 June. All the Law Lords were clear that none could, but some observations were made about the interpretation of the words in s 41 (3) (c ), on which the defendant had relied. Lord Steyn said that the words could not be extended to cover a period of several days. Lord Hope construed the words without reference to the debates in Parliament, but did rely on the explanatory notes to the Act prepared by the Home Office. The relevant note stated that it was expected that the words ‘at or about the same time’ would generally be interpreted no more widely than 24 hours before or after the offence. Lord Hope merely observed that the use of the words ‘or about’ in s 41 (3)(c) avoided the trap of placing a straitjacket around a matter that had to be determined according to the facts and circumstances of each case. What was said by Lords Steyn and Hope suggests that any event taking place more than, at most, a few hours outside the 24 hour periods before and after the alleged offence will be inadmissible. Lord Clyde left the question more open. In his view, how far backwards or forwards one might go beyond the borders of the event remained for the trial judge to determine. Even so, he thought it might be difficult to extend that period to one of several days.
7. Similarity explained as a coincidence:
Sub-section (3) (c) allows the court to look at the sexual behaviour of the complainant on other occasions where that behaviour is so similar to the behaviour of the complainant on the occasion under investigation that the similarity cannot be explained as a coincidence. The behaviour may match either some element alleged by the defendant to have been part of the event that has led to the charge, or some feature of its surrounding circumstances within the limitations just described. It appears to cover behaviour either before or after the alleged offence. The defendant in R v. A, in an answer to an allegation of rape, said that the complainant had consented to sexual intercourse and further, if he was wrong about that, he had believed that she was consenting. In support of these alternative defences he wished to cross-examine the complainant about a sexual relationship between them that had lasted for approximately three weeks shortly before the alleged rape. It was accepted by all counsel in the appeal that the sub-s (3) (c) exception was not available on the facts. Nevertheless, there was some discussion about how the provision should be interpreted. On one view, the test was effectively that of striking similarity. This concept emerged during the development of the law relating to similar fact evidence, which, exceptionally, allowed the prosecution to adduce evidence of bad character in order to support its case against the defendant. In Boardman v. DPP Lord Salmon said that if the crime charged was committed ‘in a uniquely or strikingly similar manner to other crimes committed by the accused, the manner in which the other crimes were committed may be evidence on which a jury could reasonably conclude that the accused was guilty of the crime charged’. It seems clear that such evidence must be of an unusual and specific nature.
8. Evidence of a general approach:
Lord Williams opined that evidence admissible under s 41 (3) (c ) could not include ‘evidence of a general approach towards consensual sex’, such as a taste for one night stands’ or for having sex on a first date. It certainly could not include the fact that the complainant had previously consented to sex with people of the same race as the defendant. Nor could it include, where the allegation was of rape in a car, the fact that the complainant had previously had consensual sex in a car. He said that to be admitted under this provision, behaviour had to be ‘the sort of behaviour that is so unusual that it would be wholly unreasonable to explain it as coincidental’. As an example, he took a complaint alleging gang rape where one of the defendants alleged consent. If the defence had ‘specific factual evidence’ that the complainant had previously engaged in consensual group sex in similar circumstances, this might be relevant for the jury to consider. An example given by Lord Steyn in R v. A, was that of a defendant who alleged consent and also stated that after intercourse the complainant tried to blackmail him by alleging rape. Evidence that on a previous occasion she had similarly tried to blackmail him would be admissible under this exception.
9. Lord Clyde view:
Lord Clyde took the view that the standard set by s 41(3) (c ) was ‘something short of striking similarity’. It was not necessary that the similarity should be in some rare or bizarre conduct. Lord Hutton pointed out, as had Lord Clyde, that s 41 (3) (c ) did not contain the expression ‘strikingly similar’, but used less stringent words.
10. Bad character:
The complainant in a sexual case is protected further from the bad character provisions of s. 100 Criminal Justice Act 2003. Analysing the sections Cross and Tapper point out, ‘The combination of these provisions may be regarded as immunising the general operation of s. 41 from the effect of s. 100 of the Criminal Justice Act 2003’.
11. Section 41 (4):
Section 41 (4) clearly specifies that no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the sole or main purpose of the defence is to impugn the credibility of the complainant as a witness. This interpretation is supported by the decision of the Court of Appeal in R v. Martin, where it was held that questioning about a complainant’s previous sexual behaviour was not permitted if the main purpose was to impugn her credibility, but that it could be permitted if the main purpose was to strengthen the defence case. If the courts interpret these provisions literally then there is a danger that it may exclude evidence that is relevant.
12. Section 41 (5):
One aspect of s. 41 where it is argued that the court should be prepared to grant leave is in cases where s. 41 (5) applies. This is where evidence of the victim’s sexual history has been adduced by the prosecution. In such a case, the accused should be given leave to rebut or explain the evidence although such instances where such evidence would be adduced by the prosecution would be rare. For example, if during examination-in-chief the complainant states that she was a virgin before she was raped, the defence may cross-examine with the object of rebutting that assertion, and call evidence to do so if need be.
13. Section 41 (6):
It should be noted that where leave of the court is granted for evidence of the victim’s sexual history to be adduced, s. 41 (6) makes it clear that only evidence of specific instances of sexual behaviour can be adduced. This prevents evidence of the victim’s reputation for sexual behaviour from being brought in, thereby removing one of the excesses of the common law which allowed such evidence to be adduced.
14. Right to a fair trial:
The changes introduced by s. 41 have been welcomed in many respects and they resolve a number of the problems prevalent in s. 2 of the 1976 Act. What remains unclear is whether the prohibition on the accused in adducing evidence of the victim’s previous sexual behaviour contravenes the Human Rights Act 1998. it has been argued that the prohibition contained in s. 41 contravenes the accused’s right to a fair trial. This has yet to be resolved by the courts and developments in this area are awaited. The Government claimed that it had taken account of the Canadian case of R v. Seaboyer, where a provision which allowed sexual history evidence only in limited and predetermined circumstances was held to be a violation of the right of the accused to a fair trial. Many critics however are not convinced that the new sections will survive a challenge under art. 6 of the ECHR. The rape-shield provisions have now been reviewed by the court of Appeal and the House of Lords.
15. The Court of Appeal’s difficulty:
In interpreting the new provisions the Court of Appeal has identified the difficulty in R v. Y. (2001). The court noted that it was common sense that a person, whether male or female, who had previously had sexual intercourse with the defendant might, on the occasion in dispute, have consented to sexual intercourse with the defendant. The Court did not accept that such an approach stemmed from a sexist view of women. It seemed to reflect human nature. The trial process would be abused if the jury were precluded from knowing, if it were the case, that the complainant and the defendant had recently taken part in sexual activity with each other and it might be that a fair trial would not be possible if there could not be adduced in support of the defence on consent, evidence as to the complainant’s recent sexual activity with the defendant. Arguably, the statute is an instance where the desire to balance the rights of defendants and victims has tipped the scales too heavily and jeopardises the integrity of the criminal trial.
16. The decision of R v. A:
The issue was scrutinised in R v. A. where the Court of Appeal held that evidence of the alleged relationship was admissible in relation to the defendant’s belief in consent, but not in relation to the issue of consent itself. The prosecution appealed to the House of Lords, which considered, as we have seen, the interpretation of s 41 (3) (c), but also considered the effect on that provision of s 3 of the Human Rights Act 1998. Section 3 requires the court, so far as it is possible to do so, to read and give effect to primary legislation in a way that is compatible with human rights. The relevant right here was the right to a fair trial under Art 6. the House of lords applied this rule of interpretation to s 41 and held that where the evidence relied on by a defendant was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial, it should be admitted, as should cross-examination based on it.
17. Problems of the reform
As Roberts and Zuckerman suggest that the experience of the new law suggests that the reforms may have addressed some problems but also generated new ones. The court’s approach has been criticised as unprincipled by a number of commentators (Dennis and McEwen). Some commentators suggest that the reasoning is tortuous and that a declaration of incompatibility would have been preferable. Others such as Cook argue that the purpose behind the Act is undermined to the detriment of complainants. The main problem is that the defence must convince the court to allow leave to question about any previous sexual behaviour of the complainant. There is a high test for admissibility since the court must be convinced that the evidence is relevant within the terms of the Act or probative enough that a failure to admit it might result in a miscarriage of justice.
18. Two lines of approach:
On the other hand, the defence counsel who wishes to refer to a complainant’s sexual history now has two lines of approach. First, he can try to show that the evidence falls within an exception to the basic rule of inadmissibility imposed by s 41. If that fails, it may be possible to argue that the questioning and evidence should nevertheless be admissible on the principle established in R v. A. this is likely to be easier where the defence wishes to show the existence of a previous sexual relationship with the defendant. Thus in R v. Richardson, the Court of Appeal held that a narrow interpretation of s41. (3)( c) would be unfair and quashed a conviction where the trial judge had not permitted cross-examination about a continuing sexual relationship between the complainant and defendant. Furthermore, sexual relations with other men are most unlikely to be regarded as relevant. Even where there has been previous sexual intercourse with the defendant, its relevance may be open to question. For example, an isolated episode distant in time and circumstances would almost certainly be excluded. On the other hand, a recent close and affectionate relationship would probably be regarded as relevant.
Thus, in conclusion, although arguments in favour of s. 41 may be understandable it is arguable that a heavy-handed interference with judicial discretion on such a key issue as relevance is inimical to justice. A better approach might be to continue to enhance procedural protection for vulnerable witnesses.
Before ss41-43 YJCEA 1999 came into force, the relevant statutory provision governing cross-examination of complainants in rape cases was s 2 (1) of the Sexual Offences (Amendment) Act 1976. Section 2(1) was designed to offer protection for complainants, allowing cross-examination on previous sexual history only with leave.
Section 2(2) limited leave to those circumstances where the judge believed that refusal to allow such cross-examination would be unfair to the accused. Case law following that Act resulted in leave being granted in almost every case where the accused relied upon consent by way of defence (R v. Lawrence).
Section 41 (3) deals with evidence relevant to an issue in the case and a distinction is drawn between issues that are issues of consent and those that are not. Issues of consent essentially mean the question as to whether the victim consented to the sexual conduct to which the accused is being tried. Subsection (5) relates to evidence that rebuts or explains any evidence adduced by the prosecution about any sexual behaviour of the victim.
Sub-section 41(3) applies if the evidence or question in cross-examination relates to a relevant issue in the case and either:
a) that issue is not an issue of consent; or
b) it is an issue of consent, and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge; or
c) it is an issue of consent and the sexual behaviour of the complainant is alleged to have been, in any respect so similar:
i) to any sexual behaviour of the complainant which the defendant alleges took place as part of the event which is the subject matter of the charge, or
ii) to any other sexual behaviour of the complainant which the defendant alleges took place at or about the same time as that event,
that the similarity cannot reasonably be explained as a coincidence.
The issue was referred to the House of Lords (R v A). Lord Steyn pointed out that. ‘The genesis of the problem before the House was that s.41 imposed identical exclusionary provisions in respect of a complainant’s sexual experiences with the accused as with other men’. This posed ‘an acute problem of proportionality’. The House concluded that it was a matter for the trial judge in each case to actually determine whether or not the evidence was sufficiently probative to merit admission. In a judgement which showed the impact of the Human Rights Act it declared that since ordinary canons of statutory interpretation of s. 41 did not allow admission of such evidence, the section should be interpreted in the light of s. 3 of the Human Rights Act 1998 to allow compliance with the provisions of Art. 6.
In a unanimous judgment a number of the speeches indicated that excluding such evidence might jeopardise the fairness of the trial. Lord Steyn declared that evidence may be ‘so relevant to the issue of consent that to exclude it would endanger the fairness of the trial. It is indeed the case that relevance depends on context and that legislating too narrowly on it may be unwise. The House of Lords addressed the problem by stretching the interpretation of s. 41 (3) ( c) to allow questioning on the previous sexual encounter. They applied s. 3 of the HRA 1998 which as Lord Steyn put it requires the court to subordinate the niceties of the language of s.41 (3) ( c) and in particular, the touchstone of coincidence, to broader considerations of relevance judged by logical and common sense criteria of time and circumstances.
By s 43, an application for leave under s41 shall be heard in private and in the absence of the complainant. Nothing is said of the defendant’s presence; presumably Parliament did not intend to exclude him, and the application will be made to the court after members of the press and public have been excluded. Where such an application has been determined, the judge must state in open court, but in the absence of the jury if there is one, his reasons for giving or refusing leave, and, if leave is granted, the extent to which evidence may be adduced or questions asked. Presumably, this also will take place in the presence of the defendant, but in the absence of the complainant, who would otherwise be alerted to questions she or he would face in cross-examination.
I have already suggested that ss 41 and 42 of the 1999 Act make it possible that probative evidence will be excluded, to the disadvantage of the defence. For example, a long standing sexual relationship between the complainant and the defendant could be concealed from the jury. Another example of potential injustice was given in the House of Lords by Lord Thomas of Gresford. Suppose, he said, a man and a woman live happily together for a period of time, but that the woman subsequently goes to live with another man. In due course that man leaves her and she returns to her first partner. A little later she has a row with that partner about having left him for another man. After the row she goes to the police and complains that her first partner has raped her. At the trial for rape, counsel for the defendant wants to put to the complainant that she made the complaint because of the row she had over her going away with the other man. Naturally, the defendant wants to give evidence explaining what the row was about. However, the effect of s 41 is to exclude both cross-examination and defence evidence on that matter.
It was inevitable that the provisions of s41 would be challenged by reference to the European Convention on Human Rights, and this is what happened in R v. A, the facts of which have already been outlined. At a preparatory hearing in the Crown Court the defendant’s counsel applied for leave to cross-examine the complainant about the alleged sexual relationship between her and the defendant. The judge held that such cross-examination was excluded by s 41. The defendant appealed. The Court of Appeal held that evidence of the alleged relationship was admissible in relation to the defendant’s belief in consent, but not in relation to the issue of consent itself. The prosecution appealed to the House of Lords, which considered, as we have seen, the interpretation of s 41 (3) (c), but also considered the effect on that provision of s 3 of the Human Rights Act 1998. Section 3 requires the court, so far as it is possible to do so, to read and give effect to primary legislation in a way that is compatible with human rights. The relevant right here was the right to a fair trial under Art 6. the House of lords applied this rule of interpretation to s 41 and held that where the evidence relied on by a defendant was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial, it should be admitted, as should cross-examination based on it. The decision has been criticised on the basis that it was not possible to interpret s 41 in this way, and that the appropriate course would have been to make a declaration under s 4 of the 1998 Act that s 41 was incompatible with the European Convention. Be that as it may, it is now clear that defence counsel who wishes to refer to a complainant’s sexual history now has two lines of approach. First, he can try to show that the evidence falls within an exception to the basic rule of inadmissibility imposed by s 41. If that fails, it may be possible to argue that the questioning and evidence should nevertheless be admissible on the principle established in R v. A. this is likely to be easier where the defence wishes to show the existence of a previous sexual relationship with the defendant. Sexual relations with other men are most unlikely to be regarded as relevant. Even where there has been previous sexual intercourse with the defendant, its relevance may be open to question. For example, an isolated episode distant in time and circumstances would almost certainly be excluded. On the other hand, a recent close and affectionate relationship would probably be regarded as relevant.