|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> A, R v (No 2)  EWCA Crim 4 (15 January 2001)
Cite as:  EWCA Crim 4
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
B e f o r e :
(LORD JUSTICE ROSE)
MR JUSTICE HOOPER
MR JUSTICE GOLDRING
|R E G I N A|
|- v -|
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2HD
Tel No: 0171 421 4040 Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
MR D PERRY & MISS P LEES appeared on behalf of the Crown
Crown Copyright ©
"(1) If at a trial a person is charged with a sexual offence, then, except with leave of the court
(a) no evidence may be adduced, and
(b) no question may be asked in cross examination,
by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied
(a) that subsection (3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or questions relates to a relevant issue in the case and either
(a) that issue is not an issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar
(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
(ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
that the similarity cannot reasonably be explained as a coincidence.
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5) This subsection applies if the evidence or question
(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate)."
"If the court is satisfied that the provision is incompatible with a Convention right it may make a declaration of that incompatibility."
"(a) does not effect the validity continuing operation or enforcement of the provision, in respect of which it is given; and
(b) is not binding on the parties to the proceedings in which it is made."
"Even the most ardent reformers acknowledged the high probative value of past sexual conduct in at least two instances. The first is when the defendant claims consent and establishes prior consensual sexual relations between himself and the complainant... although the evidence is offered to prove consent, its probative value rests on the nature of the complainant's specific mindset towards the accused rather than on her general unchaste character."
"All twenty five statutes adopting the Michigan approach allow the accused to introduce evidence of prior sexual conduct between himself and the complainant. The high probative value and minimal prejudicial effect of this evidence have been discussed. Rather than relying on the invidious inference that consent with one implies consent with others, this evidence is probative of the complainant's state of mind towards the particular defendant, permitting an inference that the state of mind continued to the occasion in question."
"...because it appears to be considered that the judicial notion of relevance is so outdated and wrong headed that it cannot possibly be defended, the prevailing culture is to be challenged by legislating in favour of the 'correct' view. Under section 41, the complainant's sexual behaviour (including behaviour with the accused) has relevance to consent only where it took place at or about the same time as the event of the subject matter of the charge or to any other sexual behaviour alleged to have taken place at or about that time. All that can be revealed, it would seem, is evidence such as that the complainant was seen in a passionate embrace with the accused just before (or just after) the alleged offence; bizarre and unusual conduct like the much discussed propensity to re enact the balcony scene from Romeo and Juliet, and (perhaps) evidence that the complainant was picking up clients as a prostitute (if it is D's defence that he was so picked up). Along with all the complainant's other sexual doings, the remainder of the history of any sexual relationship the complainant has had with the accused will, it seems, have to be concealed from the jury or magistrates. It is not clear how this is to be done in a case where, for example the parties are living together: is the jury simply to be told what happened in the bedroom without any idea of whether D was a trespasser or an invitee? Presumably there will have to be some concept of background evidence that it is necessary for the jury to know in order to make sense of the evidence in the case.
Section 41 is well intentioned, but the constraints laid on relevance go too far. It is also far from apparent why the history of the complainant's relationship with the accused was factored into the exclusionary rule at all: the present rule, excluding evidence about behaviour with third parties, would seem to be as far as it is necessary to go. Because it is so prohibitive, it evokes painful memories of the courts' early efforts in the field of similar fact evidence to constrain relevance within predetermined categories efforts which are now recognised to have been an attempt to avoid a more precise assessment of probative value in the circumstances of each individual case."