The issue of the relevance and admissibility of previous sexual history evidence often provokes controversy. It has led to debates on the role of judicial discretion in this area, on the extent the courts can use the interpretative power conferred by section 3 of the Human Rights Act 1998, and above all how best to resolve the natural tension between protecting the complainant’s privacy and dignity and the accused’s right to a fair trial in a proportionate manner.

Over the last few decades many jurisdictions have adopted ‘rape shield’ legislation designed both to protect complainants from unnecessary humiliation and distress when giving evidence and to prevent the trial process being distorted by the ‘twin myths’ line of reasoning. The ‘twin myths’, as described in Canadian jurisprudence are ‘that unchaste women were more likely to consent to intercourse and, in any event, were less worthy of belief.’ There is an increasing acceptance that the scope for such improper lines reasoning should be eradicated. There is less consensus as to the legislative model most appropriate to achieve the right balance between protection of the complainant and a defendant’s right to a fair trial.

The present restrictions enshrined in Section 41 of the Youth Justice and Criminal Evidence Act 1999 are a result of a dissatisfaction of the Home Office, informed by a powerful body of academic opinion, with the operation by the courts of the previous regime brought into effect by Section 2 of the Sexual Offences (Amendment) Act 1976. The wording and structure of Section 41 suggest close attention was paid to recent Canadian and Scottish models.

However there are very significant differences. On the face of the legislation there is no residual judicial discretion. Lord Steyn in R v A (No2), when the new provisions were considered by the House of Lords within a few months of implementation, stated:

‘Whilst the statute pursued desirable goals, the methods adopted amounted to legislative overkill.’

His observation mirrors the conclusion reached by the Hon.Mrs.Justice McLachlin in the Canadian case of Seaboyer when considering earlier Canadian legislation which amounted to a blanket exclusion:

‘ In achieving its purpose – the abolition of the outmoded, sexist based use of sexual conduct evidence – it overshoots the mark and renders inadmissible evidence which may be essential to the presentation of legitimate defences and hence to a fair trial. In exchange for the elimination of the possibility that the judge and jury may draw illegitimate inferences from the evidence, it exacts as a price the real risk that an innocent person may be convicted. The price is too great in relation to the benefit secured, and cannot be tolerated in a society that does not countenance in any form the conviction of the innocent.’

R v A (No 2)
R v A (No 2) provided an opportunity for the House of Lords to consider the excessive breadth of the new provisions and to loosen the judicial straitjacket that the S41 regime had imposed upon judges. The virtual blanket exclusion of previous sexual history evidence between the complainant and the accused under Section 41(1), subject to narrow categories of exception, has as a result of the House of Lord’s intervention given way to the admission in trials, where appropriate, of logically relevant sexual experiences between the complainant and the accused.

Whilst evidence of previous, or subsequent, sexual behaviour of the complainant with third parties is irrelevant in most cases, far more cases are now being prosecuted where there has been a previous sexual relationship between the complainant and the accused than ever before. To reconstruct the parties in the eyes of the jury as strangers or people who had never enjoyed consensual intimacy together would in many cases have arbitrarily excluded key matters for the jury’s consideration, and worse still have positively misled juries.

The Operation of Section 41 in the aftermath of R v A (No 2 )

Section 41 has led judges and practitioners alike to adopt a clinical structured approach where true relevance to an issue in the case is properly and carefully analysed. In so doing the defence have to seek to enter the narrow gateways and surmount the hurdles of the Section 41 regime. In many cases the regime, whilst unnecessarily over elaborate, does not pose problems in its operation, and truly relevant evidence will be admitted. However Section 41 continues to spawn problems in the trial of some sexual offences where credibility of complainant and accused is often all-important.

R v A (No 2) has not opened the floodgates, but it has, by redesigning the similar fact gateway ( S41(3)(c)) , unshackled judges from a legislative straitjacket that might otherwise have led them to exclude truly relevant evidence on an arbitrary basis (principally in the context of sexual relationships between defendants and complainants) and thereby to have endangered the fairness of trials.

RESULTS OF RESEARCH SPONSORED BY CBA PUBLISHED ON 20th JULY 2004

Research has been undertaken into the operation of Section 41 by the courts during the post A(No 2) era. Neil Kibble, an academic at the University of Wales, Aberystwyth, whose writings on section 41 and rape shield legislation were cited extensively in R v A (No 2), has been conducting the research at the invitation of the Criminal Bar Association of England and Wales (CBA). It was jointly funded by the association and the University of Wales. His research is an authoritative and valuable piece of scholarship. It involved interviewing 70 Circuit Judges and 4 High Court Judges who try serious sex cases, as well as 3 Lord Justices of Appeal and a Lord of Appeal in Ordinary. The interviews were semi-structured in that they included set general questions about the origins, structure and operation of Section 41 and about the judges’ perceptions of problems and issues in this area.

They also included four scenarios to gauge judicial thinking on a range of issues surrounding the interpretation and application of Section 41. It was important to obtain a fuller picture of judges’ reasoning on these issues than has been available hitherto so that the continuing debate on the relevance and admissibility of such evidence can take account of judicial perspectives. This is a classic case of a difficult area which needed balanced research by a distinguished academic, so that high quality research is available when the Government considers whether further legislation is needed.

Mr.Kibble’s research shows that the Government was wrong to adopt legislation in 1999 giving judges no discretion over whether or not to admit evidence of previous sexual history. That approach was fundamentally flawed, and such legislation can only operate fairly once the appellate courts have intervened and restored judicial discretion.

Significantly, the interviews with the judges show that the discretion restored by the House of Lords in R v A (No 2) in respect of previous sexual relations with the defendant himself has been applied restrictively. The strict requirements imposed by the legislation remain active, are consistently and rigorously applied by trial judges, and there has been no softening of the very tight regime regulating previous sexual history with people other than the defendant himself.

It follows from Mr. Kibble’s research that ill-founded claims by some politicians suggesting that trial judges are not enforcing the tight section 41 regime and are habitually allowing cross-examination as to irrelevant previous sexual history are simply not true. Such irresponsible suggestions can only do harm to the cause of victims who should not be misled into thinking that they will not receive proper protection at trial. Such myths should be exposed. Victims should be encouraged to come forward. The courts will protect them where appropriate. All who practice in this area will confirm Mr.Kibble’s conclusion that far from allowing questioning and evidence in relation to sexual history as a matter of course, judges approach the issue thoughtfully and with an awareness of the dangers of admitting irrelevant evidence. The judges’ responses suggest that they are weighing the relevance of sexual history evidence in the circumstances of the case and determining whether the goal of achieving a fair trial for both defendant and complainant demands the admission or exclusion of the evidence. Both judges and advocates are exercising their responsibilities in a more thoughtful manner than is often depicted.

The Home Office itself commissioned research into the operation of Section 41 in the aftermath of R v A (No 2.). This research has been conducted by Professor Jennifer Temkin of Sussex University, and is yet to be published.

In the meantime, Neil Kibble has also looked closely at models adopted in other jurisdictions. His extensive research shows that in the vast majority of cases where a non-discretionary approach has been adopted, the courts have either had to read down the legislation or declare a blanket exclusion unconstitutional so as to ensure fair trial.This demonstrates that rape shield models that entirely eliminate judicial discretion tend to be unworkable in practice. The major flaw lies in an attempt to pre-determine relevance in advance. Where courts have to strain statutory interpretation to its limits so as to shoehorn truly relevant evidence into pre-determined categories in order to avoid arbitrary exclusion, there remains a high risk of uneven, unsatisfactory and potentially unfair application of the rape shield. It is to be hoped that Mr. Kibble’s conclusions are heeded before any change to section 41 is introduced. His full report is available on the CBA website. www.criminalbar.com

Peter Rook QC,
18, Red Lion Court
August 31st 2004

Peter Rook acted as counsel for the defendant in the House of Lords case R v A (No 2) and is co- author of ‘Rook and Ward: Sexual Offences – Law and Practice.’ Sweet and Maxwell. 3rd edition to be published in September 2004.