The Facts Ostensibly, the relevant facts are that - (a) The defendant was charged with rape and (b) sought leave from the trial judge to adduce evidence (section 41 of the Youth Justice & Criminal Evidence Act (YJCEA) 1999) the complainant had previously had a sexual relationship with him and had sex with a third party a day before the rape.
Section 41 of the YJCEA 1999
It is only possible for a defendant to ask questions about a complainant's sexual behaviour in a given case if the particular court gives them leave to do so since - (i) otherwise the jury or judge's conclusion will be rendered unsafe; and (ii) such evidence is considered to relate to a relevant issue; that is either: (a) not of consent, or (b) is of consent but sexual behaviour took place at or about the same time as the alleged rape, or (c) is of consent but the sexual behaviour is so similar to, or at or about the same time as the alleged rape so it could not be coincidence ; or (iii) the evidence is necessary to rebut or explain evidence of the complainant's sexual behaviour. Therefore, the complainant could be asked about the incident with a third party before the rape, but not about the sexual relationship with the defendant.
The Decision (Court of Appeal)
In the Court of Appeal the Crown then conceded under section 41(3)(a) of the YJCEA 1999 evidence of a sexual relationship would be admissible as relevant to the defendant's belief in consent - although not consent itself - whilst the complainant's sex with a third party was now considered inadmissible because it was irrelevant to consent with the defendant. The defendant maintained this understanding of section 41(3)(a) of the YJCEA 1999 was in breach of the European Convention on Human Rights (ECHR) 1950 at Article 6 regarding the right to a fair trial because evidence of sex with the complainant was only admissible to his belief in consent.
Therefore, this effectively meant -
(i) The complainant and defendant's previous sexual relationship could be relevant to consent, but a lack of evidence could contravene Article 6 of the ECHR 1950.
(ii) Reading the Human Rights Act (HRA) 1998 at section 3 means where evidence is relevant to consent its exclusion would endanger the fairness of proceedings, it would be admissible under section 41 of the YJCEA 1999.
(iii) Section 41(3)(c) of the YJCEA 1999 may be subject to the implied provision evidence or questioning needed for a fair trial under the ECHR 1950 at Article 6 should not be inadmissible for achieving justice.
(iv) The judge has to determine if sex with the complainant satisfies the test at (ii).
(v) There was no need for a declaration of incompatibility.
The Decision (House of Lords)
In coming to their decision the House of Lords made the following points -
Section 41 of the YJCEA 1999 was a problem of proportionality because a prior relationship between the parties may be relevant to a future decision despite the 'legislative overkill'.
The House of Lords agreed with the Court of Appeal that, regardless of the HRA 1998 at section 3, under section 41(3)(b) of the YJCEA 1999's time restriction could not be indefinitely extended.
To achieve compliance with the HRA 1998 at section 3 the judge in a given case needed to pay due regard to the trial judge to protect the complainant from indignity.
How is the law understood? (Lord Steyn)
Lord Steyn made some general observations about the remit of the HRA 1998 at section 3 because "the techniques to be used will not only involve the reading down of expressed language in a statute but also the implication of provisions" with regard to any given area. [1] This effectively means that, as has already been recognised, "a declaration of incompatibility is a measure of last resort". [2] The reason for this is that Lord Steyn effectively recognised that "section 3 [of the HRA 1998] requires the court to subordinate the niceties of the language of section 41(3)(c) [of the YJCEA 1999], . . . , to broader considerations of relevance judged by . . . time and circumstances". [3] That Lord Steyn should take such a view is supported by the fact he recognised "it is realistic to proceed on the basis that the legislature would not, . . . , have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material". [4] Moreover, section 41(3)(c) of the YJCEA 1999 is considered "subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 of the Convention [ECHR 1950] should not be treated as inadmissible". Therefore, Lord Steyn served to recognise that "sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under section 41(3)(c) [of the YJCEA 1999]" to fulfil the interests of justice in a given case. [5]
How is the law understood? (Lord Hope of Craighead)
On the other hand, Lord Hope of Craighead recognised that as to whether section 41 of the YJCEA 1999 was incompatible with the ECHR 1950 could not really be finally determined at the pre-trial stage. This effectively meant that it was neither necessary nor appropriate to resort to the interpretative obligation in section 3 of the HRA 1998. [6] The reason for this is that "the rule of construction which section 3 [of the HRA 1998] lays down is quite unlike any previous rule of statutory interpretation" since it has come to be understood that "Compatibility with Convention (ECHR 1950] rights is the sole guiding principle". [7] On this basis, Lord Hope of Craighead then served to argue that "section 41 [o the YJCEA 1999] contradicts the idea that it is possible to read into it a new provision" to allow "the courts to give leave whenever it was of the opinion that this was required to ensure a fair trial (under Article 6 of the HRA 1998]". [8]
Conclusion
In the context of the cross-examination of complainants, this presentation has sought to discuss the significance of the decision in R v. A (Complainant's Sexual History) [9] to this area of law. To this point the facts and the decisions of the Court of First Instance along with that of both the Court of Appeal along with the House of Lords have been dealt with but it is also necessary to look to place this decision in its given context. [10] Broadly speaking the decision in R v. A (Complainant's Sexual History) [11] of the House of Lords is considered useful in furthering the law's development. This is because, although it is now undoubtedly true to say a complainant's general sexual history cannot and should not be relevant to consent, it is not right to try and maintain on the basis of section 41 of the Youth Justice & Criminal Evidence Act (YJCEA) 1999 that there having been a previous sexual history between a complainant and defendant cannot ever be relevant to consent with further sexual encounters. [12] Despite this recognition, however, previous consent to sex with the defendant does not mean the complainant consented for every possible potential occasion: the reality is the parties sexual history could be relevant to the jury determining consent. Section 41 of the YJCEA 1999's lack of logic is effectively supported in the case of R v. A (Complainant's Sexual History) [13] by the judge in the court of first instance ruling sex with a third party the day before could be put before the jury but a relationship with the defendant could not be simply on the basis of timing. [14]
Problems with the decision of the House of Lords emanate from the court's route and the potential for future problems because they should surely have declared the YJCEA 1999 to be incompatible with the ECHR 1950 at Article 6. [15] However, this was not the case. Instead the House of Lords ruled section 41 of the YJCEA 1999 remains intact in terms now largely misleading since any piece of legislation that is put in place should clearly serve to set out its effect. [16] Therefore, the formulation now laid down for the operation of section 41 of the YJCEA 1999 is likely to lead to even more appeals in the future in much the same way as in R v. A (Complainant's Sexual History). [17] This is because, in looking to try serious sex cases, the judiciary has come to believe section 41 of the YJCEA 1999 that was meant to guard against victims having their own sex lives pulled to pieces in a given case's court proceedings is somewhat flawed. [18] The judiciary have looked to argue that section 41 of the YJCEA 1999 only works because the House of Lords allowed the admission of such evidence to prevent instances of injustice within society. [19] That such a view arose was because academics like Neil Kibble have found that judges throughout the country are extremely concerned that without some form of evidentiary discretion - regardless of the distress it may cause to complainants - it could lead to defendants being faced with injustice because the judiciary has argued evidence of a victim's sexual history could sometimes prove to be relevant. [20]
Section 41 of the YJCEA 1999 ostensibly aimed to guard against admitting evidence into a given case's court proceedings that is prejudicial and irrelevant whilst also stopping the distress that may be caused to women along with also increasing the chance of achieving a conviction. However, as academics including Kibble have recognised, the legislation was somewhat restrictive as it seemed to stop evidence of a previous sexual relationship being admitted unless, for example, judges can admit relationship evidence that arose 'at or about the same time' as the alleged rape but without discretion where it arose several days before. [21] Therefore, as a result of R v. A (Complainant's Sexual History), [22] the Home Office was commissioned to research the working of section 41 of the YJCEA 1999, but academics like Kibble have argued the judiciary made the provision workable [23] because it proved incumbent upon the judiciary to resolve such matters of concern. [24]
