FOR EDUCATIONAL USE ONLY
Crim. L.R. 2002, JUL, 531-553
Criminal Law Review
2002
Editorial
RETHINKING SEXUAL HISTORY EVIDENCE: PROPOSALS FOR FAIRER
TRIALS
Di Birch.
Copyright (c) 2002 Sweet and Maxwell Limited and Contributors
Case: R. v A (Complainant's Sexual History) [2001] UKHL 25; [2002] 1 A.C. 45 (HL)
Legislation: Human Rights Act 1998 s.3(1)
Youth Justice and Criminal Evidence Act 1999 s.41
Subject: CRIMINAL EVIDENCE. Other related subjects: Human rights
Keywords: Admissibility; Consent; Rape; Right to fair trial; Sexual behaviour; Victims
Abstract: Whether analysis of restrictions on admissibility of evidence of complainant's
sexual history by defence under s.41 of 1999 Act and HL judgment suggests law is
flawed and inconsistent with good evidence doctrine.
*531 Summary: Section 41 of the Youth and Criminal Evidence Act 1999 greatly
restricted the use that defendants can make of evidence of complainants' sexual history
and in so doing created serious problems for the fairness of trials. The decision of the
House of Lords in R. v. A(2) has resolved some of the problems, but a better solution is
to rethink the legislation.
Introduction
The passing of the Human Rights Act 1998 was intended to herald a new era in
which judges in domestic courts would be liberated to make their own distinctive
contribution to the development of the jurisprudence of human rights. [FN1] As part of
the enabling mechanism the traditional rules of statutory interpretation were extended.
Section 3(1) requires that an Act of Parliament be "read and given effect to in a way
which is compatible with the Convention rights", a rule "quite unlike any other previous
rule of statutory interpretation" [FN2] that "requires a court to find an interpretation
compatible with Convention rights if it is possible to do so". [FN3] When, in 1999,
Parliament somewhat high-handedly curbed the use that can be made at trial of evidence
of a complainant's sexual behaviour, it was always on the cards that concern that the
reform amounted to "legislative overkill" [FN4] might manifest itself in a preparedness
to explore the more creative possibilities of the judges' role as guardians of the right to a
fair trial under Article 6 of the Convention.
Section 41 of the Youth Justice and Criminal Evidence Act 1999 [FN5] was enacted
on a wave of invective against the courts for failing to give proper effect to earlier
legislation on sexual history evidence, section 2 of the Sexual Offences (Amendment)
Act 1976. The reformers insisted that a complainant's sexual history should *532 be
revealed at trial only where it has "direct relevance to the case" [FN6] and that the
complainant should receive the "best protection the court can provide without unfairness
to the defendant". [FN7] Although both propositions appeared on the face of section 2,
[FN8] and there was an abundance of entirely serious appellate musing on how best to
give effect to them, [FN9] the head of steam for reform built up because the courts'
practice was considered too permissive: too much of the complainant's history was taken
to be relevant, and the boundaries of proper inquiry, staked out by reference to what
judges considered it would be unfair to exclude, were too widely drawn for the critics'
liking. Section 41 sets out to curb these excesses by replacing the flexible safeguard of
the "unfairness" test with provisions which identify the specific matters in respect of
which a court may grant leave to the defence to make reference to the complainant's
sexual history. Draconian though these new measures are, they were not intended to
encroach on the absolute right of the accused to a fair trial. If anything, the climate of
fairness was to be improved by removing from the trial process evidence likely to
prejudice and distract the fact-finder. But in so far as the judges' pre-1999 approach to
what was an acceptable balancing of the interests of the accused, the complainant and of
justice equally reflected their own (distinctive) concept of a fair trial, it was obvious that
section 41 would have to pass through the fire of interpretation using Human Rights Act
principles before the full effect of Parliament's new strategy could properly be gauged.
The first skirmish went all the way. In A(2) [FN10] the House of Lords was asked
this question:
"May a sexual relationship between a defendant and complainant be relevant to the
issue of consent so as to render its exclusion under section 41 of the Youth Justice and
Criminal Evidence Act 1999 a contravention of the defendant's right to a fair trial?"
The unanimous answer (given with different degrees of reservation as to the
relevance of such evidence and how far section 41, on a literal reading, necessarily
excluded it in the first place) was that the trial judge, guided by the interpretative
obligation imposed by section 3(1), should grant leave to the defence to refer to the
sexual relationship [FN11] if it was "so relevant to the issue of consent that to exclude it
would endanger the fairness of the trial under Article 6 of the Convention". [FN12]
Crucial defence evidence which on a normal reading would be excluded could be saved
in this way.
*533 Given that one of the aims of section 41 was to set out in a clear way the cases
in which sexual history evidence could be used, [FN13] any recourse to an "unnatural"
interpretation cannot but erode something of the new framework. To the extent that the
notions of relevance and fairness invoked by the House are at variance with those which
the Act seeks to codify, the decision in A(2) also generates uncertainty as to how far it
will be necessary in future to stray from a natural construction in order to secure a fair
trial: an uncertainty which is compounded by the absence of any real agreement in the
House on the compulsion to do so on the facts of the case before them.
Where section 41 falls down, it will be argued, is in its failure to tie an important
policy of protecting witnesses from unnecessary humiliation and distress into existing
(distinctive) common law principles regarding both relevance and the legitimacy of
restricting the defence in the way it puts its case: in short, an absence of joined-up
thinking the overall cure for which is an Evidence Code (although less drastic short-term
remedies will also be suggested). The decision in A(2) could have done more to
highlight the defects in legislation which is proving a headache for trial judges,
particularly when the section 3(1) rule of construction is invoked by the defence.
The fair trial flashpoints in section 41: protecting the right to "crucial" evidence
The 1976 legislation applied only to rape and cognate offences, [FN14] whereas
section 41 applies where an accused is charged with "any sexual offence." [FN15] This
was an uncontroversial broadening of the protection for a complainant which the Court
of Appeal had already anticipated by inviting trial judges to apply the spirit of the 1976
Act in prosecutions for some lesser offences in order to ensure that the right to crossexamine was not "abused or extended unnecessarily". [FN16] The leave of the court is
now required before evidence is adduced or a question asked in cross-examination by or
on behalf of any accused about "any sexual behaviour of the complainant". Sexual
behaviour "includes any ... sexual experience, whether or not involving any accused or
other person" so that it explicitly extends (which section 2 of the 1976 Act just as
explicitly did not) to material demonstrating a prior sexual relationship *534 between the
complainant and the accused. [FN17] This was a truly controversial extension and it was
unsurprising that the first case considered worthy of the attention of the House of Lords
was concerned with a previous relationship between the parties.
Because the Act goes on to exclude from the prohibition any sexual behaviour that is
alleged to have taken place as part of the event which is the subject matter of the charge,
leave is not required (as at first sight it appears to be) in order to prove obviously
relevant facts such as that the complainant initiated the behaviour complained of, or
consented to it where consent is in issue. Section 41 does not set out to threaten the
principle, recently and rightly identified by the Law Commission as fundamental to a
fair trial, that both sides should be free to tender evidence bearing on the "central set of
facts" in issue in the case. [FN18]
Leave is however required before counsel for any defendant in the proceedings
[FN19] is able to put questions to any witness (not simply the complainant) or to call any
evidence (including the evidence of the accused himself [FN20]) about any other sexual
behaviour of the complainant. The leave requirement does not apply to the prosecution,
making section 41 unusual in that it provides a one-sided exclusionary rule affecting
only defence evidence and questions. The "equality of arms" principle enshrined in
Article 6(3)(d) of the Convention is inevitably threatened by the imposition of any such
restriction; as Lord Hope noted in A(2) Parliament was "entering upon a very sensitive
area". [FN21]
The fair trial flashpoint identified by the House of Lords in A(2) concerns the extent
to which the defence may need to refer to matters going beyond the central set of facts in
order to provide the court with crucial material, that is to say material the absence of
which may lead to unjust conviction. The House accepted that the right to produce such
material is paramount:
"The right of a defendant to call relevant evidence, where the absence of such
evidence may give rise to an unjust conviction, is an absolute right which cannot be
qualified by considerations of public interest, no matter how well-founded that public
interest may be." [FN22]
This does not settle, or even address, the question whether evidence going beyond
the central facts may be so relevant, but both section 41 and its predecessor agree that it
may. The old section 2 set out to protect the defendant's right directly by requiring a
judgment to be made on whether unfairness would result from exclusion of the evidence.
As this strategy was regarded as having failed, section 41 adopts instead the riskier
option of a closed list of cases where evidence may be regarded as crucial. As powerful
academic criticism on both sides of the Atlantic has it, this is folly, as there is no sure
way of foreseeing every eventuality; the "myriad of *535 factual contexts" in which
sexual history evidence might be sufficiently relevant. [FN23] In A(2) it was contended
that the previous relationship between the parties was crucial to the central issue of
consent. If the evidence was indeed both crucial to that defence and necessarily rendered
inadmissible by section 41, it followed that the provision was incompatible with Article
6.
In the debates on the Act the Government acknowledged that the onus was on
section 41 to protect the right to adduce crucial evidence. Lord Williams, boldly
rejecting an appeal for a safety-net provision to catch evidence which, though not within
the exceptions, ought nevertheless to be admitted, asserted:
"The amendment ... seems to be inspired by the idea that there are relevant pieces of
sexual behaviour evidence that [the clause] as currently drafted excludes, but which
ought to be admitted. I do not agree with that proposition. My belief is that [the clause]
allows enough scope for all relevant evidence about a complainant's sexual behaviour to
be introduced. [FN24]
The crux of the matter for the House of Lords is therefore whether the exceptions, or
"gateways" to admissibility are indeed broad enough to prevent unjust conviction. Each
of the four gateways opens only in respect of evidence or a question which "relates to an
issue in the case", so that relevance first falls to be established according to ordinary
common law principles. [FN25] Evidence may be tendered on the ground that it is
relevant to an issue which is not an issue of consent [FN26] (the non-consent gateway)
or, if it is relevant to consent, that the sexual behaviour to which the defence seeks to
refer is either alleged to have taken place "at or about the same time" as the event,
[FN27] or is so similar to behaviour taking place as part of the event (or at or about that
time) that the similarity cannot reasonably be explained as coincidence [FN28] (the
consent gateways, which we may loosely term the "res gestae" and the "similar fact"
gateways). These three are the only gateways through which the defence may seek to
pass unassisted: the fourth (rebuttal) gateway applies only where the prosecution has
adduced evidence about the sexual behaviour of the complainant and the matter to which
the defence seeks to allude would go "no further than is necessary" to enable that
evidence to be rebutted or explained on the accused's behalf. [FN29]
Material which passes through a gateway will not necessarily be received: the court
must also be satisfied that a refusal of leave might have the effect of rendering unsafe a
conclusion of the court/jury on any relevant issue in the case. [FN30] The court thus has
an exclusionary power in respect of relevant evidence which passes through the
gateways but does not cry out to be heard, but, in accordance with the *536
Government's philosophy that no relevant evidence escapes the gateways, no
inclusionary power in relation to any evidence falling outside them.
There are four organising principles behind the gateways, the second and third of
which are apt to exclude evidence which has a strong claim to be considered crucial:
(1) Leave will always be granted to the extent that it is necessary to enable D to meet
any [FN31] evidence adduced by the prosecution. Section 41 provides but a clumsy
expression of this important principle: limiting the rebuttal gateway to material "going
no further than is necessary" to enable the prosecution evidence to be rebutted in practice
renders the cumulative application of the "unsafe" test a nonsense. Even so it rightly
recognises that it may be crucial for the defence to bring such evidence [FN32]: the
prosecution cannot open the door to sexual history evidence only to shut it in the
accused's face. [FN33]
(2) Except as permitted by (1), leave will never be granted where the sole or the main
purpose of the defence advocate is to damage the complainant's credibility. In other
words, the gateways relating to substantive issues cannot be used to smuggle in evidence
to attack credibility. [FN34] This principle, enshrined in section 41(4) by way of
qualification of all bar the rebuttal gateways, is designed to lay to rest the "myth" that
sexual experience is an indicator of veracity, but at the expense of leaving the court no
room to manoeuvre the evidence or question is thought to be crucial to a fair trial. In
A(2) Lord Clyde clearly saw section 41(4) as a fair trial flashpoint, commenting also that
it assumed a clean division between issue and credit which it would require a "very
sharp knife" to make in a sexual case where the proof that the complainant did not
consent typically resolves itself into an issue of credibility. [FN35] The distinctively
English concept of a fair trial places much reliance on credibility, and we will see that
the courts have found ways of admitting some evidence perceived as crucial, such as
evidence of (allegedly) false complaints made by the same complainant, without needing
to question the compatibility of section 41(4) with the right to fair trial. However, it is
doubtful whether the statutory language can be strained so as to accommodate, for
example, evidence suggestive of a motive to fabricate where the motive derives from the
complainant's sexual history.
(3) The other flashpoint concerns consent. Leave may be given where the question or
evidence is tendered to establish consent, but only within the *537 two narrowly drawn
res gestae and "similar fact" exceptions. [FN36] The message here is that the use of
sexual behaviour on other occasions as indicative of consent, while it cannot be
completely forbidden, must be particularly carefully controlled to prevent the jury
drawing on a different set of stereotypes or "myths" about consent: in particular that
preparedness to consent to one partner, or to many, makes consent to the defendant's
advances more likely. The House of Lords, while broadly sympathetic to the notion that
consent myths and fair trials do not mix, had difficulty with a principle that equated, in
terms of its potential relevance, evidence of previous consensual behaviour with the
accused and with third parties. To the extent that there was in consequence a threat to
A's right to adduce crucial evidence, the "reading down" of the similar fact gateway was
the preferred solution.
(4) Where none of the above applies but the evidence is relevant to an issue in the
case which is not an issue of consent, it may be admitted subject to the unsafe test. This
principle is stated sufficiently broadly to admit all crucial evidence which is relevant
otherwise than to consent, so that the right is protected. [FN37] The accused who is
running a Morgan defence of belief in consent has only to bring himself within this
principle, as such a defence does not raise an "issue of consent" for the purposes of
section 41. [FN38] In A(2) it was noted that the "unsafe" test would be strictly applied in
such cases, and that it by no means followed that every Morgan defence opened the
floodgates to sexual history evidence, [FN39] but clearly the Act does provide a safety
valve by which such evidence, if crucial, can always be admitted.
The rest of this article will confine itself to the two legislative tactics which threaten
to undermine the right to adduce crucial evidence: the narrow consent gateways
(particularly as they affect the admissibility of the relationship between complainant and
accused), and the denial (except in relation to matters relied on in rebuttal) of any
gateway to admit evidence which primarily affects the complainant's credibility.
The consent gateways
It was the decision to include evidence of the relationship between the parties
themselves within the leave requirement which, coupled with the limited consent
gateways, forced the House of Lords to consider resort to section 3(1) of the Human
Rights Act 1998. If, as section 41 holds, a previous sexual relationship between the
parties bears (or bears sufficiently) on the issue of consent only where the evidence or
question in respect of which leave is sought took place "at or about the same time" as the
offence, or is so closely linked to it in terms of the similarity *538 of the behaviour that
coincidence is not a rational explanation, then the facts asserted in A(2) appear to fall
well outside the limits of admissibility. A faced a trial for rape, at which consent was to
be an issue. At a preparatory hearing defence counsel sought leave to cross-examine the
complainant at trial, and to lead evidence, about her previous sexual relationship with A.
Consensual sexual activity had allegedly taken place on several occasions in the three
weeks prior to the alleged rape, the last occasion being about a week before. The
suggestion (not accepted by the prosecution) was that the complainant and A were
engaged in a secret affair behind the back of A's boyfriend, who had been taken to
hospital on the night of the alleged rape.
Relevance
The first question is whether this material was relevant to the issue of consent. The
trial judge clearly thought so, giving permission "with enthusiasm" to appeal against his
finding that section 41 gave him no option but to refuse leave. The Court of Appeal
[FN40] was of the same view. While allowing the interlocutory appeal on the ground
(not argued below) that leave could have been granted under the nonconsent gateway to
support a possible Morgan defence, the court agreed that both of the consent gateways
were firmly closed. If the evidence had been deployed, therefore, it would have been
subject to a warning from the trial judge to the jury that it was not relevant to the
question whether the complainant actually consented. Yet, as a matter of common sense:
"a person ... who has previously had sexual intercourse with another, particularly in
recent weeks or months, may, on the occasion in dispute have been more likely to
consent to intercourse with that other than if that other were a stranger or one with whom
no previous sexual familiarity had occurred."
The question is whether this represents the court's reprehensible, mythembracing
approach to repeating consent or their entirely rational recognition that if true the
evidence was potentially crucial. The House of Lords are collectively unhelpful. There is
a consensus that consent given on a previous occasion is not always relevant: a
relationship between the parties might be so remote in time or circumstance [FN41] as to
make the drawing of any inference from it impossible. But this has always been
uncontroversial territory, though Lord Hope suggests otherwise when he says that
section 41 "ends the assumption, widely held hitherto, that the complainant's sexual
history with the defendant is always relevant and admissible". [FN42] In fact the
common law, while accepting that "the development of the relationship between the
parties might well throw some light on the matters and events before the jury", made no
such assumption: where it differed from section 41 was in regarding the doctrine of
relevance, in combination with the judge's power to control improper questioning, as
sufficient to ensure fair trial of the issue. [FN43]
*539 It is in relation to potentially relevant evidence of recent consent that their
Lordships part company. Lord Steyn concedes relevance to an "ongoing" sexual
relationship, and seems most closely in sympathy with the Court of Appeal when he
states that "as a matter of common sense" a prior relationship may be relevant to
consent. Lord Clyde states that evidence of other sexual behaviour between the parties
"in many cases may be highly relevant" and seems to concede relevance on the "sparse
facts" before the court. More cautiously, Lord Slynn would clearly admit evidence that
"two young people ... have lived together" or had intercourse "regularly as part of a
happy relationship", but it is not clear at what point prior to this the relevance threshold
may be crossed. Lord Hutton similarly holds that it is "probable" the evidence will be
relevant "where there has been a recent close and affectionate relationship between the
parties", but unlikely where the proof consists of isolated instances of consent, even if
recent, without the background of such a relationship. [FN44] On the bare facts
contended for by the defence the evidence did not seem to him to be relevant. The reason
for Lord Hutton's distinction lay in his acceptance of Galvin's argument that the
probative value of the evidence derives not from any general proposition based on past
consent as an indicator of present consent but on the "complainant's specific mindset
towards the defendant, namely her affection for him". Lord Hope also expresses himself
to be unpersuaded of the relevance of the casual relationship alleged between the parties:
"the mere fact" that intercourse took place on various recent occasions was "irrelevant to
his defence of consent", though it remained open for A to argue a more compelling case
at trial.
Academic writings reflect a still wider spectrum of opinion as to the relevance of
prior consent. Professor Spencer argues that "even the most committed feminists
presumably accept that a person more readily consents to sex with her regular partner
than with others", [FN45] echoing Galvin's protest that "even the most ardent reformers"
acknowledge the high probative value of prior consensual relations between the parties.
[FN46] At the other extreme, there are those who would argue that the "mindset"
argument relied on by Lord Hutton is misconceived in that it draws on discriminatory
generalisations, [FN47] diminishes the autonomy of the complainant as a person capable
of exercising sound judgment and free choice, and fails to recognise that the decision to
engage in sexual activity is always made afresh, in each new and different situation.
[FN48] Admitting such evidence, it is argued, feeds the myth that women are less likely
to be raped by their sexual partners than by others and should not be countenanced.
Quite how this myth is supposed to be dispelled by concealing evidence of prior
relationship, thereby reconstructing the accused as a stranger, is not clear, and the
argument smacks of "logic mugged by ideology". [FN49] The Canadian legislation on
sexual history evidence, section 276 of the Canadian *540 Criminal Code, provides that
evidence of the complainant's sexual activity, including activity with the accused, is not
admissible "to support an inference that, by reason of the sexual nature of that activity,
the complainant ... is more likely to have consented to the sexual activity that forms the
subject matter of the charge". [FN50] The Canadian debate therefore focuses on whether
"mindset" evidence derives its force from such an inference. [FN51] The narrow
ideological view therefore becomes plausible [FN52] because ultimately it does: both
the mindset argument and the myth of repeat consent depend on reasoning from
disposition, and the former begs to exclude itself from the status of "myth" afforded to
the latter because as a matter of degree it is more specific, and so more compelling, not
because as an argument it is logically distinct. Fortunately, there is no question of an
extreme ideological view being taken by English courts: the existence of the consent
gateways, and in particular the similar fact gateway, show that Parliament itself has
conceded that mindset may be relevant. Nevertheless Lord Hope's cautious refusal to
concede relevance to the "mere fact" of consensual intercourse a week before the alleged
rape sense recognises the problems inherent in the use of propensity evidence. As Galvin
notes, the argument closely mirrors the case for admitting a specific disposition of the
accused under the similar fact rule. [FN53] This does not much help us to pin down the
point at which evidence of previous consent becomes relevant (much less admissible) as
English law has never been entirely sure or consistent in its treatment of disposition
evidence. [FN54] It may then be unsurprising that the House of Lords, unable
unanimously to associate itself with the Court of Appeal's trenchant assertion that
reliance on recent consent to the accused "is not mythical but common sense", cannot
agree about the point at which myth is left behind and common sense takes hold.
However, it is intensely problematical, because the power of the trial judge to strain the
language of the similar fact exception is based, by all five Law Lords, solely on the
degree of relevance which the evidence has in relation to consent. If the evidence
discloses a casual, ongoing (but not affectionate) relationship the trial judge is in a bind:
possibly even a double bind, because if the presence of affection is indeed required can
the courts not be accused of having simply substituted a different myth (that women's
choices are conditioned by their affections) which is no less insulting to those who
believe in the autonomy of women to make sexual choices on the same footing as men?
In fact, both section 41 and the House of Lords make an incorrect assumption about
relevance which dangerously narrows the field of inquiry, which is that relevance can be
expressed solely in terms of probative value. In the parallel field of evidence of bad
character, however, it is accepted that the claim of evidence to be admitted may rest not
on its value in establishing the existence or non-existence of a disputed fact, but in its
ability to provide the necessary background or context against which the dispute must be
resolved. Such evidence may need to be admitted *541 even if it is prejudicial in that it
reveals previous misconduct by the accused. The frequently-cited test is that laid down
by Purchas L.J. in Pettman [FN55]:
"... where it is necessary to place before the jury evidence of part of a continual
background or history relevant to the offence charged in the indictment, and without the
totality of which the account placed before the jury would be incomplete or
incomprehensible, then the fact that the whole account involves including evidence
establishing the commission of an offence with which the accused is not charged is not
of itself a ground for excluding the evidence."
The parallel with section 41 is particularly pronounced in the ruling of the trial judge
in the unreported case of Campbell, [FN56] where the Court of Appeal upheld the trial
judge's decision to admit evidence relating to an incident six months before the alleged
offence:
In a case such as this which depends upon the relationship between the parties as part
of a continuum the excision of one isolated part of the history would, in our judgment,
inevitably have caused distortions of the account placed before the jury and would have
prevented them from being in a position to judge the actions of the appellant ..."
In their Report, "Evidence of Bad Character in Criminal Proceedings", the Law
Commission's detailed study of this difficult area of law accepts the Pettman principle:
evidence of a defendant's misconduct on an occasion other than the offence charged may
be of value on the basis that it is so much part of the factual background that the factfinders would be misled by incomplete evidence, or the case would be incomprehensible
to them were it not adduced in evidence. [FN57] The value of such evidence, if it does
not extend to proving or disproving the issue whether the accused committed the offence
lies in what the Law Commission call its "explanatory value" rather than its probative
value. A case taken by way of illustration is based on M(T), [FN58] where D was
charged with sexually abusing his sister and the prosecution was allowed to lead
evidence that there was a history of abuse within the family in order to explain what the
jury would otherwise have found incomprehensible: that the complainant did not turn to
her family for help. Among related forms of "explanatory" evidence identified by the
Law Commission's researches is evidence showing a prior relationship with the victim.
If explanatory evidence is a category entitled to recognition by way of exception to
the bad character rules, it is submitted that it must follow that section 41 also needs to
cater for it. Pettman and Campbell deal with prosecution evidence that it is "necessary"
to admit. If the necessity is that of the defence instead, a fair trial without that evidence
is an impossibility. In A(2) the defence had to meet a case in which it was accepted that
A had intercourse with his best friend's girlfriend, on a towpath, shortly after her
boyfriend had been carried off to hospital, at a time when she had been drinking to
excess (this being the reason why she was not allowed to *542 accompany her boyfriend
in the ambulance). To a juror from whom the affair is a close-kept secret, this is likely to
present as a rather nasty case of taking advantage. [FN59] To a juror in the know it has
the potential instead to be a case of clandestine lovers heartlessly taking mutual
advantage of an unexpected opportunity for intimacy. It is still perfectly possible, even
after accepting that there was a prior relationship, to conclude that the complainant did
not consent on this occasion, but what is not possible is a fair trial for the accused if the
jury are presented with "an isolated part of the history" when the case depends on the
continuum of a relationship. This argument for inclusion does not depend on whether the
prior relationship was ongoing or affectionate, but on whether the jury can be expected
to grasp the defence case without it. Had the House of Lords seen the evidence in A(2)
as requiring an assessment of its explanatory rather than its probative value, there might
have been a higher degree of consensus as to its relevance. Arguably, the House fell into
the trap, set by Parliament, of regarding sexual history evidence as sui generis rather
than subject to the same rules of logic as other evidence. Or perhaps it was the lure of the
mindset debate, so important on other shores. The key to a distinctively English
approach lay much closer to home.
There is a further aspect to explanatory evidence which may be relevant to why its
importance is likely to be overlooked in the context of sexual history evidence. Because
it serves to "set the scene" for other evidence it is likely to be introduced in most cases
by the prosecution, so that section 41 does not come into play. If, for instance, it is
contended that a woman was raped by her husband in the marital home, it would be
unrealistic to suppose that the prosecutor would ever seek to sever the central facts from
the history of the relationship, thereby putting the onus on the defence to seek leave to
adduce it. Similarly, it is submitted, if it was accepted that the parties were in any sort of
relationship (affectionate or determinedly casual) the chances are it would come out in
the telling of the story. The sort of explanatory evidence which typically would not be
produced in this way is evidence which the prosecution does not accept to be true: for
example the evidence of prior relationship in A(2), which the complainant disputed. The
defence is then put in the unfair position of having to take its chances with gateways
designed to admit evidence of probative rather than explanatory value. [FN60] Ironically
the trial judge may well end up smuggling explanatory evidence through one of the
probative gateways (to provide a foundation for a Morgan defence, or evidence of
affectionate mindset) thus potentially investing it with an importance it lacks, and
complicating beyond measure the direction which will have to be given to the jury. What
is significant about the disputed factual background in A(2) is not so much that the
complainant's prior sexual behaviour with A makes her non-consent highly unlikely.
Rather it is that the jury in seeking to choose between conflicting accounts of what
occurred *543 are likely to reach a safe verdict only if they hear both versions of the
background. [FN61]
The proper threshold for evidence about the relationship between the parties
The history of section 41's failure to acknowledge the particular relevance of
(probative or explanatory) evidence of previous relationship with the accused is little
short of scandalous. The general legitimacy of constraining the use of aspects of sexual
history evidence is not in doubt, but the same cannot be said of the proportionality of the
means used. Given that these should be "no more than is necessary to accomplish the
objective", [FN62] Lord Steyn rightly assets that the inclusion within section 41 of the
complainant's sexual behaviour with the accused poses an acute problem of
proportionality. The House of Lords could have taken a much clearer stand against the
inroads the section makes on the rights of the defence. [FN63] Instead, the decision
reads as though the only right of the defence which ultimately requires to be protected is
the right to adduce crucial evidence, a proposition which cuts right across the distinctive
common law stance.
The traditional starting point where defence evidence is concerned is, general
principles of exclusion such as hearsay apart, that all relevant evidence should be
admitted, even if its probative value is slight. [FN64] The Law Commission [FN65] lists
among the general principles informing the admission of evidence the entitlement of
fact-finders to all relevant evidence: fact-finders should not be "unnecessarily misled or
left in the dark" and this is, or ought to be, a jealously-guarded aspect of the distinctively
English concept of a fair trial. A strong onus should therefore be cast on those seeking to
make the case for departure from it.
The case for imposing a requirement for leave to mention relationships with third
parties in the 1976 Act was based on a strong case that such material was of no, or only
marginal, relevance to right-thinking people, distressing to complainants, and inimical to
the interests of a fair trial. [FN66] The strongest defenders of the common law accepted
the need for regulation, if only to the extent that what was being excluded was not really
relevant. [FN67] Previous relationship with the accused was not regulated because the
common law doctrine of relevance was regarded as providing an adequate filter, when
combined with the trial judge's duty to curtail oppressive and inappropriate questioning
as to the detail of relevant matters. [FN68] Since then, only two things have changed.
First, there is now a generally accepted obligation to organise the criminal process in
such a way that the rights of witnesses, including their rights *544 to privacy and
personal security, are not unjustifiably imperilled. [FN69] Secondly, there is a growing
realisation that an accused should not necessarily be seen as having a "right" to all
relevant evidence if at the same time it can be shown to be prejudicial. [FN70] Neither
trend is self-evidently sufficient to abandon the common law mechanism for admitting
evidence of the relationship between the parties if the test to be applied is that more
stringent statutory regulation is necessary rather than merely that it is reasonable,
politically correct or convenient. Damningly, the report Speaking Up for Justice, which
gave rise to the 1999 Act, not only does not debate the merits of regulation; worse, it
furnishes no clear indication that evidence of the complainant's relationship with the
accused was to be brought within the new framework. The Parliamentary history sheds
little more light. The Attorney-General, Lord Williams, appears to concur with the
common law's stance when he stated only that "behaviour with the defendant may
sometimes be irrelevant", [FN71] an observation which provides no mandate for more
intrusive regulation.
This culpable failure to address a key issue left the House of Lords not merely to
evaluate the case for inclusion, but to make it. Aside from the inadequate argument that
such evidence may be irrelevant, the main justification is that it is potentially prejudicial,
in the sense that the jury may too readily assume a repeated consent to the same partner,
and may fail to concentrate on the real issue in the trial, which is whether the
complainant consented to the accused on this occasion. [FN72] This seems highly
speculative, but even if there is some truth in it, it is a weak basis for exclusion. Why not
discourage the jury from over-valuing the evidence by judicial direction instead? That is
the accepted common law response to evidence of the accused's lies, [FN73] where rules
have grown up with precisely the object of ensuring the evidence is given no more
weight than it deserves, and it is also, though by different means, incorporated into the
strategy for evaluating evidence of the accused's silence. [FN74]
The argument also fails to acknowledge that evidence of relationship is likely to be
led by the prosecution and, where this happens, judicial direction is the only way of
combating the risk that the evidence will be invested with more probative value than it
possesses. Why is it different if the defence seeks to lead the evidence? To the extent
that the prosecution may dispute that it is true, the case seems to call for the imposition
of some mechanism to prevent unsubstantiated allegations. If, however, there is evidence
to prove the relationship (typically from the accused) and it has explanatory value if true,
there seems no reason for imposing any further safeguard beyond the need for a
particularly careful direction about how the evidence should be treated since, whether it
is true or false, it suggests that one of the parties is seeking to mislead the court.
*545 With Lord Hope as principal proponent, a clutch of further arguments was
advanced in relation to the feelings of complainants (actual and potential). The exposure
of the complainant's relationship with the accused was said to be no less humiliating than
evidence relating to other partners, while the mere prospect of giving evidence against a
former partner might be sufficient to deter genuine complainants. The frequency of rape
within relationships and the extent to which it appears to go unpunished also suggested
that the common law mechanism was unsatisfactory. [FN75]
These arguments again assume that the effect of regulation will be to conceal from
the jury evidence of a relationship that the complainant accepts existed, but this, as has
been demonstrated, by no means follows. Even if it did it must be asked whether any
reasonable complainant would expect her fears to be addressed by not mentioning her
relationship with the accused at all. [FN76] It also places too high a burden of blame on
the common law mechanism for the high acquittal rate in rape cases, which has endured
despite such well-intentioned measures as the abolition of the corroboration rule. If
juries can only be trusted to adjudicate on cases of rape within relationships by being
kept in the dark about the relationship, there is something fundamentally wrong with
jury trial.
What regulation can reasonably be asked to achieve in cases where the relationship is
admitted, it is submitted, is to restrain the defence from embarrassing the complainant
and sidetracking the jury by dwelling on the detail of the complainant's previous relevant
behaviour with the accused, where there is no real "similar fact" argument and the detail
itself is of no relevance for any other purpose. The real issue should be whether the
common law mechanism is adequate to this task, and the answer, it is submitted, is a
qualified "yes". The obvious advantage of statutory regulation is that the attention of the
court can be focused on important issues and a structure provided for consistent
decision-making, though the same results can be obtained through a clear guideline
judgment by the Court of Appeal, or a Practice Direction.
In cases like A(2) where the complainant denies the relationship there is an
additional argument to consider. If the evidence has explanatory value, the complainant
is being accused of misleading the court on an important matter. Even if this were
humiliating, it is not the sexual content of the accusation which makes it so (though
again, it would be necessary to keep the defence away from irrelevant detail).
Lastly comes the argument that regulation of evidence of the previous relationship of
the parties has been incorporated in the exclusionary rule on other jurisdictions,
including Canada and Scotland. This prompts Lord Hope to conclude that there is no
clear answer to the problem, which in turn supports his general thesis that Parliament
was acting within its discretionary area of judgment when choosing the point of balance
indicated by section 41. [FN77] It seems that Parliament was influenced in its choice by
the decision in Darrach that section 276 of the Canadian Criminal Code did not, simply
by bringing such evidence within *546 the statutory scheme, infringe the accused's fair
trial rights. [FN78] But Darrach also holds that section 276 excludes only what is
irrelevant, and Lord Hope's thesis would look more respectable if Parliament had chosen
a scheme of regulation which would have inspired a similar sentiment in the judgments
of his colleagues. Lord Steyn in particular notes that nothing in the Canadian experience
justifies the inflexible approach of section 41, which (unlike section 276) excludes
evidence rather than impermissible inferences. [FN79]
The decision to regulate evidence of the relationship between the parties is based on
very tenuous foundations. The House of Lords might, holding it up to the strict test of
necessity, have found it a disproportionate incursion on the right to a fair trial. That this
was not the outcome is hardly surprising given the difficult relationship between
Parliament and the courts over the subject of sexual history evidence: holding aspects of
section 41 to be incompatible would have been a particularly contentious and
confrontational step in the early days of the Human Rights Act era, and would in any
event have been unlikely to have commanded unanimous support from all five Law
Lords. The result, sadly, is that the right of the defence to adduce relevant evidence of
relationship with the complainant is restricted to what a court can be persuaded is
crucial: a sorry fate for a distinctive and important principle.
More defensible legislative strategies
The over-regulation of evidence of the complainant's relationship with the accused
appears particularly incongruous when contrasted with evidence of the (non-sexual)
misconduct of the complainant on other occasions, which remains admissible within the
constraints of the general rules on relevance and the judge's duty to prevent oppressive
questioning. However, the case for challenging the assumptions on which the
admissibility of such evidence is based has been made by the Law Commission in their
Report, Evidence of Bad Character in Criminal Proceedings. The Commission argues
that the principle that evidence of bad character should be prima facie inadmissible
should be extended to witnesses. [FN80] A requirement of enhanced relevance for such
evidence is recommended in order to secure a trial which is fair to the accused and at the
same time safeguards witnesses from gratuitous attack. The Commission accepts that
evidence should not be excluded simply because it is of limited probative value, but
because of "the prejudice which such evidence may introduce in respect of a witness
whose evidence may be crucial". [FN81] The judicial power to control irrelevant or
vexatious questions is regarded as an inadequate safeguard against these risks.
The experiences of the law in seeking to confine the use that can be made of sexual
history evidence played a key role in the Commission's reasoning, which took it to the
conclusion that there were three main reasons for changing the law so as to require a test
of enhanced relevance before admitting evidence of a witness's bad character:
*547 (1) the special power of bad character evidence to distort the fact finding
process;
(2) the need to encourage witnesses to give evidence, by making it known that
witnesses will not have their past exposed publicly where it is at best of only minimal
relevance to the questions in issue, such as whether they are telling the truth; and
(3) the prospect that the courts could be given a clear and supportive framework to
control gratuitous and offensive cross-examination which has little or no purpose other
than to intimidate or embarrass the witness or muddy the waters.
This is a framework within which, it is submitted, a mechanism for the regulation of
all aspects of sexual history evidence might helpfully be subsumed. However, two
features of the Law Commission's scheme are particularly at odds with section 41. First,
the regulation which is suggested for bad character evidence is confined to behaviour
which might incur the disapproval of a reasonable person, on the ground that a principle
prima facie excluding that which "only the wholly unreasonably intolerant or irrational
might find morally dubious" [FN82] would be wrong in principle and unworkable in
practice. This hurdle might well be crossed by evidence of a complainant's relationships
with third parties, but is less likely to be surmounted by the complainant's behaviour
with the accused which, as previously noted, may possibly be overvalued by a jury but is
unlikely to inflame moral prejudice. Secondly, the regulation suggested is more
reminiscent of the open-textured judgment required to be made under the 1976
legislation: the Law Commission recommends that if evidence does not relate to the
central set of facts and leave is required to adduce it [FN83] it will be admissible if it has
either substantial explanatory or probative value, but not otherwise. The right to adduce
crucial defence evidence of either kind is thus implicitly guaranteed in that it cannot but
pass the test. [FN84] This aspect of the scheme would doubtless fail to attract the
support of those who promulgated section 41.
The alternative, it is submitted, is a revision of section 41. Preferably this should take
the form of removing from its clutches evidence of previous relationship with the
accused but, if that cannot be achieved, there must at very least be a recognition that
evidence of substantial explanatory value must be admissible. Although the Law
Commission itself sees no reason to interfere with section 41 (which it believes may
have to be applied cumulatively with its own rule in cases where sexual behaviour is
likely to incur the reasonable person's disapproval [FN85]) if the Law Commission's
proposal is enacted and stands alongside section 41, the defence will on the face of it be
more restricted in the use which can be made of the complainant's sexual behaviour
towards the accused (which may not be a matter attracting any moral prejudice) than the
prosecution in relation to the bad character of any witness for the defence including the
accused. Yet none of the reasons advanced for the concealment of sexual history
evidence in A(2) provides a *548 justification going beyond the reasons advanced by the
Law Commission for their less intrusive regulatory scheme. Reforming the law of
evidence should be a process of removing, not of fostering, such inconsistencies.
Living with the gateways
The House of Lords chose to redress the wrong of section 41 by redesigning the
similar fact gateway. The res gestae gateway was held not to be amenable to
reconstruction so as to admit behaviour bearing on consent that took place more than a
day or so either side of the alleged offence, even allowing for the special rule of
interpretation in section 3(1) of the Human Rights Act. Nor could the rebuttal gateway
be stretched by asserting that the prosecution had paved the way for it by adducing
evidence of non-consent (a construction clearly inconsistent with the wording) or on the
ground that the prosecution could elect to present their case in a way which would
enable the defence to lead evidence of sexual experience in rebuttal (dependency on the
goodwill of the prosecutor was no substitute for the right to offer a full and complete
defence [FN86]). The burden therefore fell on the similar fact gateway which is more
amenable if only by dint of being more obscure. That obscurity is now compounded by
the House offering four [FN87] different approaches to construction.
The problem is that the requirement of a similarity that "cannot reasonably be
explained as a coincidence" is not apt to include the mere fact of an ongoing
relationship, even a previously affectionate one. The statutory formula owes much to the
"striking similarity" test for similar fact evidence in Boardman [FN88] and seems to go
out of its way to avoid the wider test subsequently laid down in P, [FN89] where the key
concern was whether the probative value of the evidence exceeded its prejudicial effect,
and connections in time and circumstance other than striking similarities were accepted
as having the capacity to supply probative value of the appropriate degree. On one
interpretation section 3(1) could be deployed so as to enable the trend away from
striking similarity and towards probative force to be reflected in a rule that a previous
affectionate relationship between the parties supplied a causal connection based on
similarity and going beyond coincidence. [FN90] Alternatively some particular
characteristic of the complainant's behaviour on another occasion might be designated as
sufficiently similar even without straining the language, leaving section 3(1) to be
resorted to if the evidence shows a mindset on the part of the complainant which is
potentially highly relevant and which cannot readily be fitted within the formula. [FN91]
Both interpretations seek to preserve something of the coincidence test. A third
possibility is to say more robustly, as Lord Steyn does, that the "touchstone of
coincidence" may have to be subordinated to the broader considerations of relevance
judged by logical and common sense criteria of time and circumstances. [FN92] At the
other extreme, Lord Hope would not take the gateway very *549 far at all from its roots
in Boardman unless persuaded of the need to do so by the demonstration, on the facts of
an individual case, that this was the only basis on which a fair trial could take place.
[FN93] As he considered the facts before him too exiguous to warrant such a
construction, it is unclear whether Lord Hope's concurrence in the theoretical application
of section 3(1) was mirrored by any real concession as to the practical likelihood of ever
invoking it in practice. So much diversity creates a nightmare for the trial judge, who is
under a statutory obligation to give reasons [FN94] for giving or refusing leave.
Had the relevance of the evidence been seen to lie in its explanatory, rather than its
probative value, however, the problem of effecting any sort of reconciliation with the
wording of the similar fact gateway would have been still more acute. Lord Hope rightly
insists that any construction adopted by applying section 3(1) should not be inconsistent
with the structure of section 41. For reasons explained earlier, Parliament decided
against a "safety valve" approach whereby the judge is given an explicit power to admit
evidence it would be unsafe to exclude, and it would be inconsistent with both the
wording of the provision and the mischief it was designed to correct to read into the
section an implied provision to this effect. Although Lord Steyn's judgment can be read
as authorising this approach, it is not necessary to do so simply to admit mindset
evidence which can plausibly be branded as a species of similar fact. The same cannot
be said of explanatory evidence, however essential it might be. Nor do the other
gateways appear any more inviting, unless (unlikely) it could be argued that the evidence
does not "relate to" consent when adduced for this purpose, but rather explains, for
example, why intercourse took place without the courtesies that might have been
expected in the case of a couple who were sexually unacquainted. A case posed
explicitly on the basis of crucial explanatory evidence (which the prosecution do not
accept but which the defendant is prepared to testify is true) would seem to be beyond
the help of a section 3(1) construction.
The difficulties of the similar fact gateway can be summed up as follows. If the
sexual behaviour sought to be adduced is prejudicial in the same sort of way that bad
character evidence is prejudicial, it makes sense to have an exception based on an
enhanced standard of probative value which parallels the similar fact test for evidence
about the accused. [FN95] But (a) evidence which deals with previous relationship with
the accused is not so prejudicial and (b) even evidence of relationships with third parties,
which may well be prejudicial, appear to be dealt with by the application of a stricter
enhanced standard than for evidence of the accused's bad character. The appropriate way
to deal with (b) is to construct a rule which is symmetrical with the similar fact rule, but
this is still too harsh a solution for problem (a). Because section 41 deals with both
problems by a single formula, there is also a risk that a precedent dealing with problem
(a) will be wrongly seen by defence advocates as allowing them more latitude to argue
the admissibility of *550 evidence of relationship with third parties which in terms of
cogency never gets within spitting distance of the similar fact test (the fact that the
complainant has picked up other men in the bar where she met the accused, for
example). It is difficult if not impossible to pitch a solution in such a way as to solve
both problems at once. Now add to that problem (c), which is that explanatory evidence
is not catered for. Such evidence needs to be rendered admissible not by being smuggled
in as similar fact, but on a clear appreciation of the function it serves and the risks which
are run where a case for admitting it is argued on myth rather than rationality. The notion
of explanatory evidence is as susceptible of attracting myths as evidence of probative
value: advocates may argue, for example, that the jury "needs to know" that a
complainant has had partners from different racial groups wherever she and the accused
are of different races; that though young, she is sexually experienced, or that though
married she is not averse to having affairs. Judges need to be able to make decisions
about when explanatory evidence is important, and to make them against the background
of a clear rule which allows appropriate access by the defence.
The problem with A(2) is that it provides no foundation for the argument for
admitting explanatory evidence, and only an uncertain one for evidence of mindset. A
careful reading of the judgments does not warrant any reconstruction of the similar fact
gateway for evidence relating to third parties, but the danger with reading down is
always that the judicial interpolation (being invisible on reading the Act, a sort of
lawyer's equivalent of platform nine and three-quarters in the Harry Potter stories) may
be misunderstood (wilfully or not) in later proceedings. Better to amend the gateways so
that they exactly pose the choice to be made, which neither section 41 nor A(2) succeeds
in doing.
A credibility gateway?
Section 41 is more straightforwardly wrong with regard to the use of the
complainant's sexual behaviour as an indicator of credibility. The outright ban in section
41(4) on evidence or questions where the defence advocate's sole or main purpose is to
impugn credibility fails to separate wheat from chaff. The common law chaff (not
wholly eliminated in practice by section 2 of the 1976 Act) was that a person's sexuality
said something about their general credibility as a witness: the more promiscuous the
behaviour, the less reliable the witness. The reasoning is fallacious not only in linking
sexuality with credibility but also in regarding general credibility as a matter to which
evidential significance can safely be attached. But the witness's specific credibility is
another matter entirely: any factor that may, in the circumstances of the individual case,
afford a substantial motive to lie must be cross-examinable if the trial is to be fair. The
Law Commission in Evidence of Bad Character in Criminal Proceedings neatly sums up
the distinction by contrasting evidence which suggests the witness has an incentive to lie
on this occasion from evidence which merely suggests that the witness might lie if he or
she did have the incentive to do so. [FN96] Section 41(4), however, appears to be blind
to the distinction. This leaves open the prospect that an accused may be unable to show,
for example, that the complainant has concocted the allegation against him to pay him
back for *551 rejecting her advances in the past, or because he has threatened to tell her
parents about her sexual misconduct with boys at the school where he teaches. Such
evidence may be as crucial as evidence going directly to the issue: as Galvin says the
two are "functional equivalents" in the context of the trial of sexual allegations. [FN97]
Under the old section 2 there was a judicially recognised latitude to admit evidence
which, exceptionally, was important to credibility, [FN98] so that there was never a need
to decide whether, for example, the relevance of evidence of the making of a previous
false complaint against a third party was a matter going more to credit than to the issue.
Judges tangling with section 41 enjoy no such room to manoeuvre, and must seek
more radical solutions. In MH [FN99] the accused denied indecent assault on his
stepdaughter, and sought to question her about a number of occasions in the past when
she had lied about various matters, sexual and non-sexual. The trial judge forbade
mention of the sexual matters in reliance on section 41(4), but by the time the appeal
was heard the Crown had been won over to the argument that section 41 needed to
accommodate questions relating to previous lies about sexual assaults. The Court of
Appeal opined that evidence of false complaint was "clearly relevant" and had always
been admitted in the past. The Act was not designed to exclude what Lord Williams in
debate had referred to as "untruthful conduct". The way out of the apparent difficulty
was to hold that the questions about false complaints were not governed by section 41 at
all: they were not "about any sexual behaviour" but rather related to her "statements in
the past". [FN1] A similar conclusion was reached by the same court in the case of RT,
[FN2] where the defendant had been refused leave to show that the complainant, his
niece, had failed to complain against him at a time when she was making complaints of
sexual abuse against other members of her family. Had the complaint been true, the logic
went, there was no reason why she should not have made it at this point in time. Here
again the Court of Appeal found that section 41(4) was no bar to receiving the evidence:
the essence of the accused's argument was "about" the failure to mention his alleged
abuse, not about any sexual behaviour of the complainant. The Crown in this appeal took
a slightly less neutral stance, arguing that section 41(4) could properly be circumvented
only because the question sought to be put did not involve the assertion of any previous
sexual experience. It was not necessary for the defence to suggest that the other matters
complained of were true: it was sufficient to show the statements were made. [FN3]
From the complainant's point of view, of course, it matters little whether the question
is adjudged to be "about" her sexual behaviour if the effect of asking it is to parade her
sexual experiences (consensual or not, disputed or otherwise) in front of the jury.
Similarly, if the jury hear about it, the temptation to prejudice may be as great as if they
are given the information in order to draw conclusions from the behaviour itself. To
combat the humiliation of the victim or the prejudice of the jury *552 a rule which
operates on questions "tending to show" the embarrassing or prejudicial matter is what is
called for, provided that adequate provision is made for revelation of sufficiently
important material. The absence of any such provision in section 41 drives the court to
an interpretation which allows justice to be done, but at the cost of tempting every
advocate to construct an argument that the question to be posed is not "about" sexual
behaviour, but about some other aspect of the complainant's behaviour (not too great a
challenge in many cases).
Section 41(4) received a more sympathetic reading in M. [FN4] Here the accused
was due to stand trial for rape, and appealed against a finding at a preparatory hearing
that section 41 prohibited evidence about the complainant's motivation for falsely
accusing him. It was common ground that she had spent a very drunken night at the flat
which M shared with his brother. M claimed that she had had consensual sex with both
men, once with him and twice with his brother, while she asserted that only M had had
intercourse with her, against her will. Although the defence was consent, counsel argued
that the issue to which the evidence about the brother related was not an issue of
consent, but rather an issue of motive. It provided an explanation as to why this 17 year
old girl might have made up an allegation of rape when she returned to her parents' home
very much the worse for wear having stayed out all night without their permission. The
principal reason why, in Lord Woolf C.J.'s judgment, the appeal failed was that the court
could not see how M's ability to argue his corner would be improved were he to be
allowed to suggest that the girl and his brother were having a sexual relationship. The
jury already knew about the drinking, the sleeping-over and the fact that the intercourse
complained of took place in the brother's bed. In consequence the judge's refusal of leave
was not liable to lead to "any lack of safety or unfairness in the proceedings or in any
relevant issue not being explored". Now it might be thought that if the complainant had a
sexual relationship with the brother this might go some way towards explaining why, if
M were telling the truth, she had targeted M when cornered into making a false
complaint. Even if this is so, however, it provides no more than evidence of motive,
which at the end of the day is a matter going to credibility. Counsel had argued that
relevant questions going to motive should be permitted under the gateway relating to
issues that are not issues of consent. Even had the court been of the view that the
questioning was important, however, it would not have admitted it in this fashion, for
this would have been to elicit material "by the backdoor to impugn the credibility of the
complainant as a witness" and would enable the defence to "ride a coach and horses
through the desirable policy of section 41(4)". In RT, by contrast, a differently
constituted court observed that Lord Hope's judgment in A(2) accepts that this gateway
does indeed provide an entry for questions or evidence showing bias against the accused
or a specific motive to fabricate, despite section 41(4), a matter which the court
considered "needs to be borne in mind by trial judges". Lord Hope was, of course, not
required to deal with the specific problem which arose in M, and as the Court of Appeal
chose to deal with that case primarily on grounds of relevance it would seem that the
debate as to the admissibility of relevant evidence of specific motive remains
unresolved. As with evidence relevant to consent, it is submitted, the better way forward
would be for Parliament to admit that section 41(4) is flawed, rather than to apply the
sticking-plaster of judicial interpretation. Any attempt to invoke a section 3(1)
interpretation to get to the right *553 result would appear to be doomed, given that the
ban imposed in 41(4) is unequivocal.
Conclusions
It is understood that the Home Office intends to conduct an evaluation of how
section 41 is working in practice. It is submitted that this is a poor substitute for an
admission that it is theoretically flawed and inconsistent with good evidence doctrine.
Whether or not well-intentioned judicial interpretation can render it workable is an
interesting practical question, but an honest appraisal is likely to reveal that it is more
likely to consume court time, spawn inconsistent decisions, and confuse lawyers as to
exactly what "myths" it is supposed to eradicate, than a provision which has had, like the
Law Commission's proposals on evidence of a witness's bad character, the benefit of
wide consultation and an honest attempt to articulate the precise thinking behind it. As
Professor Elliott once wrote in relation to sexual history evidence, "at the heart of the
most elaborate formula there remains an evaluative judgment". Section 41 buries a
number of untenable evaluative judgments about the relevance of sexual history
evidence within one of the most elaborate formulae possible. Significant amounts of
goodwill were expended by the House of Lords in A(2) in trying to make a silk purse out
of it, but the Home Office seem to interpret this as a signal that there is little amiss. They
have, it is to be hoped, another think coming.
FN1. "British judges will be enabled to make a distinctively British contribution to the
development of the jurisprudence of human rights in Europe": Rights Brought Home:
The Human Rights Bill, Government White Paper Cm. 3782 (1997) at para. 1.14.
FN2. A(2) [2002] A.C. 45 per Lord Hope at para. 108.
FN3. ibid. per Lord Steyn at para. 44.
FN4. ibid. per Lord Steyn at para. 43.
FN5. Together with the associated provisions of section 42-43. For incisive criticism see
Kibble, "The Sexual History Provisions: charting a course between inflexible legislative
rules and wholly untrammelled judicial discretion?" [2000] Crim.L.R. 276.
FN6. Speaking Up for Justice, The Report of the Interdepartmental Working Group on
the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System
(1998) at para. 9.59.
FN7. ibid. at para. 9.61.
FN8. Irrelevant evidence was barred by section 2(4), and leave to admit evidence or pose
questions could be granted only where "it would be unfair to the defendant to refuse"
(s.2(2)).
FN9. Leading authorities included Viola [1982] 1 W.L.R. 1138, Brown (1988) 89
Cr.App.R. 97 and Barton (1987) 85 Cr.App.R. 5.
FN10. [2002] A.C. 45.
FN11. Whether by bringing evidence or putting questions.
FN12. [2002] A.C. 45, at para. 46, in which all concur.
FN13. Speaking up For Justice at para. 9.72.
FN14. Rape, attempted rape, aiding abetting counselling and procuring rape or attempted
rape, incitement to rape, conspiracy to rape and burglary with intent to rape (1976 Act,
section 7(2)).
FN15. This term is widely defined by section 62 as meaning rape, burglary with intent,
any offence under section 2-12 and 14-17 of the SOA 1956, an offence under section
128 of MHA 1959 (unlawful intercourse with a patient), an offence under section 1 of
the Indecency with Children Act 1960 (indecency with child under 14), an offence under
section 54 of the CLA 1977 (incitement to incest)
or an offence of attempt/incitement conspiracy to commit any of the above, or of
aiding/abetting/counselling/procuring any of them. A subsisting charge of a sexual
offence against any person in the proceedings brings section 41 into play (see section
41(7)). The new regime will apply in some summary trials, and in trials on indictment
before judges who do not have a "ticket" to try the more serious sexual cases. It will also
come into play more frequently than before in cases where the complainant is a man
(because most rapes are committed on women) and (because rape is only capable of
being committed by a woman as a secondary party) in cases where the accused is a
woman. The list of sexual offences to which section 41 applies can be varied by the
Secretary of State (s.42(2)).
FN16. Funderburk (1990) 90 Cr.App.R. 466 at 471.
FN17. s.42(1)(c).
FN18. Evidence of Bad Character in Criminal Proceedings, Law Com. No. 203, Cm.
5257 (2001) at 4.
FN19. Or the accused himself if he is unrepresented, but note that an unrepresented
accused may not himself cross-examine a complainant: 1999 Act,
s.34.
FN20. A common misperception encountered amongst practitioners is that section 41
does not bite on what the accused says in the witness box. It does. What is less clear is
whether it applies with full force to what D said when interviewed or charged, but as
such evidence is usually by convention adduced by the prosecution the difficulty does
not normally arise.
FN21. A(2) [2002] A.C. 45 at paras 90-91.
FN22. ibid. per Lord Hutton at para. 161.
FN23. H. Galvin, "Shielding Rape Victims in the State and Federal Courts: A Proposal
for the Second Decade" (1986) 70 Minn.L.Rev. 763 at 774; V. Baird, Rape in Court
(Society of Labour Lawyers pamphlet, 1999).
FN24. House of Lords, Hansard, March 23, 1999 at col. 1216.
FN25. "Relevant issue in the case" means any issue falling to be proved by the
prosecution or defence in the trial (s.42(1)(a)). Leave can now only be given in relation
to a question or evidence which relates to a "specific instance" of
sexual behaviour (s.41(6)): cf. Bogie [1992] Crim.L.R. 301.
FN26. s.41(3)(a).
FN27. s.41(3)(b).
FN28. s.41(3)(c).
FN29. s.41(5).
FN30. s.41(2)(b).
FN31. "Any" here includes behaviour alleged by the prosecution to have occurred as
part of the event: section 42(1)(c).
FN32. A(2) [2002] 1 A.C. 45 per Lord Hope at para. 73.
FN33. V. Berger, "Man's Trial, Women's Tribulation: Rape Cases in the Courtroom"
(1977) 77 Col.L.Rev. 1, 67.
FN34. Quite how counsel's motive in this matter is to be determined is wisely
left unsaid, although the unusual statutory formula "if it appears to the court to be
reasonable to assume that" the purpose is to impugn credit, conveys something of the
difficulty in second-guessing an application on this basis.
FN35. A(2) [2002] 1 A.C. 45 at para. 138.
FN36. Here also there is a problem with the cumulative application of the "unsafe" test,
which makes perfectly good sense when applied to the res gestae gateway (as not all
contemporaneous evidence is important) but very little when applied to the similar fact
gateway: if there is a relevant similarity which is inexplicable on grounds of coincidence
it could hardly be safe to exclude it.
FN37. A(2) [2002] A.C. 45 per Lord Hope at para. 79.
FN38. s.42(1)(b).
FN39. A(2) [2002] A.C. 45 per Lord Clyde at para. 130.
FN40. [2002] Crim.L.R. 389, sub nom. Y.
FN41. Remoteness in circumstances might include a case where the prosecution
alleges gang rape and the previous consent was to the accused alone.
FN42. [2002] A.C. 45 at para. 72.
FN43. Report of the Advisory Group on the Law of Rape (The Heilbron Report) Cmnd.
6352 (1975) at paras 100 at 134.
FN44. Adding that it is not possible to say with precision where the line must be drawn
[2002] A.C. 45 at para. 152.
FN45. "Rape Shields and the Right to a Fair Trial" [2001] C.L.J. 452 at 453.
FN46. op. cit. n.23 at 807.
FN47. Boyle and MacCrimmon, "The Constitutionality of Bill C-49: Analyzing Sexual
Assault as if Equality Really Mattered" (1998) 41 Crim.L.Q. 198.
FN48. Schwartz, "Sex with the Accused on other Occasions: the Evisceration of Rape
Shield Protection", 31 C.R. (4th) 232.
FN49. Gold, "Flawed, Fallacious but Feminist: When One out of Three is Enough"
(1993) 42 U.N.B.L.J. 381, discussed by Chapman, "Section 276 of the Criminal Code
and the Admissibility of Sexual Activity Evidence" (1999) 25 Queen's L.J. 121.
FN50. s.276(1)(a). Subsection 1(b) applies the same rule of exclusion to an inference
that by reason of the sexual nature of the activity the complainant is less worthy of
belief.
FN51. Paciocco, "The New Rape Shield Provisions in Section 276 Should Survive
Charter Challenge" (1993) 21 Cr. (4th) 223.
FN52. Though (it is submitted) unpersuasive.
FN53. op. cit. n.23 at 835-836: "if 'other acts' evidence may be offered against an
accused in the interest of promoting truthfinding, it hardly seems fair to exclude such
proof when it is tendered by the accused and may tend to exculpate him".
FN54. Law Commission, Evidence of Bad Character in Criminal Proceedings, Report
No. 203, Cm. 5257 (2001), at p.53.
FN55. Unreported, May 2, 1985, CA. Although the decision remains unreported the
principle has been relied on in many recent cases, including Stevens [1995] Crim.L.R.
649 and M(T) [2000] 1 W.L.R. 421.
FN56. Unreported, cited in Pettman.
FN57. op. cit. n.54, Part X.
FN58. [2000] 1 W.L.R. 421.
FN59. As McEwan, "The Rape Shield Askew" [2001] 5 E.&P.257 says, the issue is
whether a young woman would willingly have intercourse with her partner's best friend
in the circumstances of the case. Prior relationship renders credible that which otherwise
seems hard to believe.
FN60. If the evidence relates to roughly contemporaneous behaviour the res gestae
gateway could apply to evidence of explanatory as well as of probative value, but as
A(2) shows this gateway is unlikely to be very helpful.
FN61. As Lord Hope notes in A(2) [2002] A.C. 45 at para. 60, any cross-examination of
the complainant regarding the relationship would have tended to
undermine her credibility.
FN62. See e.g. per Lord Steyn [2002] A.C. 45 at para. 38.
FN63. Similar to that adopted in cases where Parliament seeks without due cause to
impose a burden of proof on the accused: Lambert [2001] 2 Cr.App.R. 511.
FN64. Choo, "The Notion of Relevance and Defence Evidence" [1993] Crim.L.R. 114,
and see recently Correlli [2001] Crim.L.R. 913 on the "unfettered right" of an accused to
crossexamine a co-accused on relevant confession evidence.
FN65. op. cit. n.54 at p.78.
FN66. "procedures have developed ... which many now regard as not only inimical to the
fair trial of the essential issues but which may also result in the complainant suffering
humiliation and distress". Report of the Advisory Group on the Law of Rape (The
Heilbron Report) Cmnd. 6352 (1975) at para. 89.
FN67. See e.g. Smith, "The Heilbron Report" [1976] Crim.L.R. 97, Elliott, "Rape
Complainant's Sexual Experience with Third Parties" [1984] Crim.L.R. 4.
FN68. The Heilbron Report, n.67 supra, at para. 134.
FN69. Doorson v. The Netherlands (1996) 22 E.H.R.R. 330.
FN70. Galvin, op. cit. n.23 above at 806, Darrach (2000) 191 D.L.R. (4th) 539.
FN71. House of Lords, Hansard, March 23, 1999 at col. 1219. The decision to regulate
evidence of behaviour with the accused was said to reflect "the Canadian experience",
but this in turn derives from the slender thread of a dictum of McLachlin J. in Seaboyer
83 D.L.R. (4th) 193 that such evidence might be of little or no value: see A(2) [2002]
A.C. 45 at para. 33.
FN72. [2002] A.C. 45 per Lord Slynn at para. 14, Lord Hope at 55 and 94, and Lord
Hutton at 142.
FN73. See e.g. Burge & Pegg [1996] 1 Cr.App.R. 163.
FN74. Driven by the need to elaborate on the statutory rule that an inference from
silence alone is insufficient to convict: Criminal Justice and Public Order Act 1994,
s.38(3).
FN75. [2002] A.C. 45 at para. 77.
FN76. cf. Naffine, "'Windows on the Legal Mind: The Evocation of Rape in Legal
Writings" (1992) 18 M.U.L.R. 740 at 745, who comments that feminists, being aware of
the need of the defence to function effectively in an adversarial setting, have never
suggested that relevant evidence should be withheld.
FN77. [2002] A.C. 45 at para. 99.
FN78. At that time a decision of the Ontario Court of Appeal, subsequently confirmed
by the Supreme Court at (2000) 191 D.L.R. (4th) 539.
FN79. [2002] A.C. 45 at para. 33.
FN80. Report No. 203, Cm. 5257 (2001) at 118.
FN81. ibid. at 123. See MacEwen, "Previous Misconduct at the Crossroads: Which 'Way
Ahead'?" [2002] Crim.L.R. 180 at 181-183.
FN82. Law Com No. 203, Cm. 5257 (2001) at 112.
FN83. Leave would be required unless the parties agree or the evidence relates to the
accused and he wants to adduce it (ibid. at 117).
FN84. It is recommended that the court might start by asking whether a fair trial is
possible without the evidence (ibid. at 130).
FN85. ibid. at 131.
FN86. [2002] 1 A.C. 45 per Lord Steyn at para. 41.
FN87. Lord Slynn contents himself with the statement that the House "cannot say that it
is not possible" to read the similar fact gateway together with Article 6 so as to achieve a
fair hearing, but (wisely perhaps) does not elaborate.
FN88. [1975] A.C. 421.
FN89. [1991] 2 A.C. 447.
FN90. Lord Hutton concluded that the extension of the gateway to include the test in P,
though desirable, could not be achieved except by applying section 3(1).
FN91. The preferred view of Lord Clyde.
FN92. [2002] A.C. 45 at para. 45.
FN93. ibid. at para. 83-9. Lord Hope is content that the threshold for admissibility under
the gateway is "significantly tighter" than the test for similar fact evidence at common
law.
FN94. 1999 Act, s.43(2).
FN95. Similar fact evidence of sexual behaviour has created problems in other
jurisdictions with rape shield provisions: see e.g. Galvin, op. cit. n.23 at 830, Chapman,
"Section 276 of the Criminal Code and the Admissibility of Sexual Activity Evidence"
(1999) 25 Queen's L.J. 121, McDonald "Her Sexuality as Indicative of His Innocence:
The Operation of New Zealand's 'Rape Shield' Provision" (1994) 18 Crim.L.J. 321.
FN96. Law Com. No. 203, Cm. 5257 (2001) at 126. Pattenden, "The Character of
Victims and Third Parties in Criminal Proceedings Other than Rape Trials" [1986]
Crim.L.R. 367 points out the need for a more focused approach.
FN97. op. cit. n.23 at 775.
FN98. Viola [1982] 1 W.L.R. 1138.
FN99. [2002] 1 All E.R. 683, [2002] Crim.L.R. 73.
FN1. It was not considered necessary to invoke section 3(1) of the Human Rights Act
(counsel's fall-back position) to achieve this result.
FN2. Reported with MH at [2002] 1 All E.R. 683, [2002] Crim.L.R. 73.
FN3. This would have meant that the defence could not follow up with any suggestion
that the complainant had somehow transposed her unfortunate experiences with other
family members and blamed them on the accused. The court expresses no view on this
limitation.
FN4. [2001] Crim.L.R. 912.
CRIMLR 2002, Jul, 531-553
END OF DOCUMENT
Copr. (c) West 2004 No Claim to Orig. Govt. Works