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Ben Hargreaves explores the inherent challenges in the admissibility of sexual history in sex cases.
Section 41 of the Youth Justice and Criminal Evidence Act 1999 is on one view a poorly drafted and clumsy piece of legislation. To complicate matters, it appears to have been incorrectly interpreted by the higher courts on numerous occasions. The reasons behind the legislation may have been legitimate and well-intended but its implementation demonstrates that a fair trial is often dependent on the whim of a trial judge and the attitude of a prosecutor. As practitioners we want certainty, fairness and clarity in the application of the law. Currently, this is not the case.
In 1887, Lord Coleridge probably assumed that he had settled the law on sexual history, at least with regard to third parties. Up until the implementation of s41, there had always been a distinction between third party evidence and defendant evidence with regards to the admissibility of sexual history. In R v Riley (1887) 18 QBD 481, Coleridge said that, in seeking to prove whether or not a criminal attempt to rape has been made upon a woman by A, evidence that she has previously had connections with B and C is obviously not on point. Such evidence should be excluded, not only on the ground that it would be unfair to the complainant, but on the general principle that it is not relevant evidence. Ten years later in Dickie v HM Advocate (1897) 24 R(J) 82, Clerk McDonald LJ gave a similar judgement. Such clarity however has not been reflected in the continuing development of English law.
An increasingly tolerant, perhaps even misogynistic approach, to allowing the introduction of sexual history to belittle a complainant led to calls for reform which resulted in the 1975 Heilbron Report which recommended significant restrictions. Section 2 of the subsequent Sexual Offences Amendment Act 1976 backed down from the Heilbron approach which had proposed a stricter statutory test and placed its faith in the judges. Section 2 required leave from the judge before any evidence could be adduced or cross examined about any sexual experience of the complainant with a person other than the defendant.
A report entitled “Speaking up for Justice” was published in 1998. This led to the inception of section 41 of the Youth Justice and Criminal Evidence Act 1999. It replaced the discretionary regime with a closed set of exceptions to a general rule of exclusion. It does not allow for any judicial discretion.
This is a hugely difficult area of law. In the legislative debates on s41, Lord Chief Justice Bingham said (Hansard 8.2.99):
Where the defence wished to ask a complainant whether she had voluntarily had sexual intercourse with men other than the accused on the days before and after an alleged rape no rational person would think those questions are irrelevant.
It is worth noting that Lord Bingham was later described by Lord Hope as the greatest jurist of our time.
In the other corner, Lady Hale, as she then was, said in R v C  UKHL 42:
“It is difficult to think of an activity which is more person and situation specific than sexual relations. One does not consent to sex in general. One consents to this act of sex with this person at this time in this place.”
It is difficult to apply a rigid framework against infinitely variable fact specific situations. The law must allow for judicial discretion.
Section 41(1) of the 1999 Act provides that, except with leave of the court no evidence may be adduced at trial and no question may be asked in cross-examination by or on behalf of the defendant about any sexual behaviour of the complainant.
This applies to both third parties and the Defendant. The restriction applies only to the defence, not the prosecution – R v Soroya  EWCA Crim 1884. Leave to adduce such evidence may only be given if the proposed evidence falls within one of four exceptions which relate to specific instances of sexual behaviour, s41(6), and satisfies two further criteria:
– a refusal of leave might have the result in rendering unsafe a conclusion of the court or jury s41 (2) (b)
– and the main purpose is not to impugn the credibility of the complainant s41 (4)
The Court of Appeal acknowledged the apparent difficulty that everything in cross-examination is designed to impugn credibility, and in R v Martin  EWCA Crim 916 held that when seeking to show motive to lie, the main purpose was not to impugn credibility of the witness.
Section 41 can only be understood in the context of the House of Lords judgement in 2001 of R v A  UKHL 25. This was the culmination of a legal challenge to s41 on the basis that it contravened Article 6 ECHR. The defendant wanted to adduce evidence of a supposed relationship with the complainant in the weeks before the allegation. Such evidence did not come within the exceptions and was therefore not admissible. The first instance ruling was appealed all the way to the House of Lords. On holding that the blanket exclusion of such evidence might interfere with the defendant’s rights, Lord Steyn held that; “the test of admissibility is whether the evidence is nevertheless so relevant to an issue of consent that to exclude it would endanger the fairness of the trial under Article 6”.
Deploying the interpretive obligation under s3 of the Human Rights Act 1998 the judgment effectively rewrote s41 to make admissible otherwise inadmissible evidence where there is a risk of contravening the defendant’s right to a fair trial. This judgment introduces confusion and ambiguity. It should at its broadest be confined to sexual history with the accused, because that is what Lord Steyn was discussing, but it has been read and accepted to also extend to third parties.
A Home Office report in 2006 entitled “An evaluation of new legislation limiting sexual history in rape trials” confirmed that, with only one exception, every circuit judge believed R v A gave them discretion to admit evidence where necessary to ensure a fair trial – despite Lord Hope categorically stating that A did not give such powers.
This confusion extends to the Court of Appeal:
In R v Andre Barrington White  EWCA Crim 946, the Appeal Court was very quick to refuse the defence ground that the fact the complainant had worked as a prostitute with the aim of supporting the claim of consent and motive to steal – the court stated that A was not authority for any wider reading of s41.
But in R v Hamadi  EWCA Crim 3048, the court said s41 “must ultimately give way to the right to a fair trial”. That suggests that the defendant’s right to a fair trial is paramount. A common misreading of convention law; from Doorson v Netherlands 1996 22 EHRR 330 established that the principles of a fair trial also recognise that, in appropriate cases, the interests of the defence are balanced against those of witnesses or victims called upon to testify. The right to a fair trial for a defendant does not take precedence over all other interests.
The four gateways under the 1999 Act:
Section 41(3) provides 4 gateways against the general principle of admissibility of evidence or questions about a complainant’s sexual history. The court may only give leave for such evidence/questions where it is satisfied that it relates to a relevant issue and either;
(a) the 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 against the accused; or
(c) relates to consent and the idea of similar behaviour that cannot be reasonably explained as coincidence, or other sexual behaviour of the complainant which took place about the same time.
But even if any gateway is met, s41(2)(b) bites, the court must then be satisfied that a refusal of leave might render unsafe a conclusion of the court or jury AND it must be properly probative. For example, the case of R v DB  EWCA Crim 1235. In that case a daughter alleged rape by her father. She had been pregnant twice and had had two terminations. There was evidence that she had been having sex with her boyfriend in indictment period – this evidence was admitted. However, the trial Judge refused to allow evidence of her having sex with another man just before her ABE interview. The reason the boyfriend sex was admitted was that in her ABE the complainant stated that she had only ever had sex with her father. The other third party was then was then purely collateral. Further, by s41(6), the evidence must relate to a specific instance and nothing general is allowed.
There is a further specific restriction on s41(3) by s41(4) – no evidence or issue shall be regarded as relating to a relevant issue if the primary purpose is to impugn the credibility of the complainant. (see above).
In A, Lord Hope gave four examples of this gateway;
a) – reasonable belief in consent (inextricably linked with consent – an example of over intellectualising the issue perhaps) but in R v Harrison  EWCA Crim 1543 – trial judge’s refusal to permit questioning about the complainant having sex with a third party three hours before the event was upheld. In R v Winter  EWCA Crim 3, a complainant telling a suspect she was having a relationship with another man did not provide the suspect with a reasonable basis for belief that she was consenting to sex with him.
b) – complainant had motive to fabricate evidence or was biased against the accused. This is very limited in practice as the evidence must relate to a relevant issue in the case and often a motive to fabricate will not be classified as such a relevant issue. R v F  2 Cr App R 13 is on point – both parties agreed that the Appellant had been in a consensual adult relationship with his stepdaughter, but she then alleged systematic abuse by him when she was a child. The Appellant said that the complainant was lying because he had broken off the relationship “in an unattractive way” – the court allowed questions about the adult relationship but not a video of her stripping and talking dirty to the appellant.
c) – there is an alternative explanation for the physical conditions upon which the Crown rely to establish that intercourse took place. Again, this is quite rare in its application and can involve third party evidence. For example, in R v L  EWCA Crim 741 – the Crown relied upon medical evidence which suggested that penetration had caused damage to hymen and defence were allowed to reference a previous allegation of rape of the same complainant some time before.
d) – details of complainant’s account must have come from other sexual activity before or after the event which provides explanation for knowledge of that activity. This too is very unusual now with all the material freely available on internet and taught at schools; see R v MF  EWCA 3376 is an example.
Consent and contemporaneity – where the evidence or related question takes place at or about the same time as the event matter. There is no definition for “about the same time”, which in turn has led to arbitrary definitions by the appeal courts. Lord Slynn in R v A (No. 2)  1 AC 45 said it should be “really contemporaneous”. It is clear that it is not a big window.
Gateway 4 relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant – it should go no further than is necessary to allow rebuttal. This is not a common ground in practice.
This is the gateway which has generated the most litigation.
When the behaviour of the complainant is so similar to other behaviour that the similarity cannot reasonably be explained as coincidence.
Hansard shows that the Parliamentary intention of this gateway was not to cover evidence of a general nature, so for example a predilection for one-night stands or sex in a car. It must relate to matters that fall outside the usual range of behaviour. Famously, Baroness Mallalieu gave the example of the Romeo/Juliet scenario which forced this exception into statute. It does not require temporal proximity and there is no issue of contemporaneity.
A number of cases are worth looking at. R v White  EWCA Crim 946, and R v Harris  EWCA Crim 434, both of which make the case of Ched Evans even odder. The Evans case,  1 Cr App R 13, has been poorly reported in the media, and putting aside any prejudice or bias it is just an outstandingly bad judgment that defies rational reading. It epitomises the element of chance that demonstrates the absence of consistency – which allows unfairness.
The facts of Evans in summary are as follows. In May 2011 – a housekeeper in a Rhyl Premier Inn finds a 19-year-old girl wandering around in a confused state. She thinks she has been poisoned, there is no mention of rape. The girl gets home and her mother is very worried and contacts the police who are sufficiently concerned to retrace her steps. She has no recollection of the events that night at all. The police trace matters back to room 8 at the Premier Inn and arrest two people; Messrs Evans and McDonald. Evans had booked the room for his friend as he was going to stay with his mother. Evans and his friends had been out on the town and lost each other. Evans was going to his mother’s home and received a text from McDonald saying he was with a girl. He went to the hotel and said he found the door open. McDonald was having sex, and someone said words to the effect; “Is it all right if my friend joins in?”. Evans believing, he would later say, that he had been given consent had sex with the young woman during which she went on all fours and asks for the sex to be “harder.” McDonald stayed and watched the act. In interview Evans admitted everything and said he had her consent. The girl had no recollection of the events in the room.
Other evidence in the case came from a bar where the complainant had been that night; some people said she was seemed OK but she fell over in the kebab shop, a taxi driver said she could swap seats and eat pizza in his car – the upshot was that she appeared drunk but in control of herself. The receptionist at the hotel said she was drunk.
McDonald was acquitted and Evans convicted. His first appeal in 2012 was refused. It was only when the defence team “found” two new witnesses (strange because they were not new, one was known to Evans and only came forward after a very large reward had been posted, and all the gruesome details were public knowledge before either man had signed a witness statement) – the CCRC referred the case back and Court of Appeal, quashed the conviction and ordered a re-trial.
The Court of Appeal determined that evidence of sexual behaviour evidence with third parties would have been relevant and admissible at trial. The court relied upon Lord Clyde’s obiter comments in R v A, that the behaviour need not be unusual or bizarre. Which was a good job because in effect the two men said when they had sex with the girl, not together, she liked it on all fours and encouraged them with similar phrases about it being “harder”. The Court identified the similar elements as:
– the complainant had been drinking
– she instigated certain activity
– she directed her partner into certain positions
– she used specific words of encouragement
Evans was acquitted on the retrial. In the admissibility argument the Crown argued that the two new witnesses and the new evidence was not new, but even if it was, it was all so commonplace that it did not come near the gateway – it was argued that the evidence fell far short of the test as seen in R v T 2004 2 Cr. App. R. 32 – where the defence was allowed to put to the complainant that the couple had sex before in a playground on a certain piece of apparatus using specific language prior to the incident where she had complained of being raped in a playground on a certain piece of apparatus where specific language had been used
In trying to cover itself the Court of Appeal concluded that circumstances in which third party material is admitted should be rare, but that Evans was a rare case. This proposition is very difficult to sustain on a rational analysis. The Court of Appeal judgement in Evans is difficult to understand against the strict framework of the statute.
Post Evans, the case of Guthrie  EWCA Crim 1633 is cited to demonstrate that he Court of Appeal has not turned away from a more faithful interpretation of s41. It is not a great example – the Court refused an application to admit previous sexual history between the complainant and the accused that happened a year before.
Why is this a problem? Why does it matter that the courts permit sexual behaviour evidence in some cases and not others? Why does it matter the press still publish inflammatory and inaccurate stories about trials? It is a problem because of the reaction it causes. There is now a movement towards legislating for a complete ban on the admission of previous sexual history.
In March 2017, Harriet Harman proposed a legislative amendment to s41 which would have the effect of prohibiting any questioning or evidence concerning the previous sexual behaviour of a complainant alleging a sexual offence – she repeated this in January 2018 with the assistance of Dame Vera Baird, the Victims’ Commissioner. They based their assertion on a survey by the organisation LimeCulture in 2017 which suggested that applications under s41 were allowed in 28% of cases. These claims were supported by Women Aid, Rape Crisis, Victim Support, the Labour Party, the Liberal Dems and Plaid Cymru. In fact, in a fuller survey conducted by Laura Hoyano on behalf of the Criminal Bar Association, only 18.6 % of complainants were subjected to s41 orders OR agreements (CBA/Section 41 Report).
The ultimate aim for the legislature is to provide a framework where the jury can consider all the relevant evidence which allows them to do their job. I have reservations about s41 performing that function.
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