A, R v. [2001] UKHL 25 (17 May 2001)

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Cite as: (2001) 165 JP 609, [2001] UKHL 25, [2001] UKHRR 825, [2001] 3 All ER 1, (2001) 165 JPN 750, [2001] 2 WLR 1546, [2001] HRLR 48, [2002] 1 AC 45, 11 BHRC 225, [2001] 2 Cr App R 21

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A, R v. [2001] UKHL 25; [2001] 3 All ER 1 (17th May, 2001)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead Lord Clyde Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

v.

A

(RESPONDENT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))

ON 17 MAY 2001

[2001] UKHL 25

LORD SLYNN OF HADLEY

My Lords,

    1. In recent years it has become plain that women who allege that they have been raped should not in court be harassed unfairly by questions about their previous sex experiences. To allow such harassment is very unjust to the woman; it is also bad for society in that women will be afraid to complain and as a result men who ought to be prosecuted will escape.

    2. That such questioning about sex with another or other men than the accused should be disallowed without the leave of the court is well established. It was recognised in section 2 of the Sexual Offences (Amendment) Act 1976 which provided that without the leave of the judge there should be no evidence or cross examination by or on behalf of the defendant of a complainant's sexual experience with a person other than the accused. Leave was only to be given by the judge "if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked".

    3. Such a course was necessary in order to avoid the assumption too often made in the past that a woman who has had sex with one man is more likely to consent to sex with other men and that the evidence of a promiscuous woman is less credible.

    4. Evidence of previous sex with the accused also has its dangers. It may lead the jury to accept that consensual sex once means that any future sex was with the woman's consent. That is far from being necessarily true and the question must always be whether there was consent to sex with this accused on this occasion and in these circumstances.

    5. But the accused is entitled to a fair trial and there is an obvious conflict between the interests of protecting the woman and of ensuring such fair trial. Such conflict is more acute since the Human Rights Act 1998 came into force. The question is whether one of these interests should prevail or whether there must be a balance so that fairness to each must be accommodated and if so whether it has been achieved in current legislation. That is essentially the question which arises in this case. I gratefully adopt the statement of the facts and the relevant statutory provisions set out in the text of the speech prepared by my noble and learned friend Lord Steyn.

    6. The question certified by the Court of Appeal which gave leave to appeal to your Lordships' House is

    7. Section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits the giving of evidence and cross examination about any sexual behaviour of the complainant except with leave of the court. Leave may be given where a) consent is an issue and where the sexual behaviour of the complainant 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" (section 41(3)(b)) and b) where the sexual behaviour of the complainant to which the question or evidence relates is alleged to have been "in any respect, so similar" to the sexual behaviour which is shown by evidence to have taken place as part of the event which is the subject matter of the charge or to any other sexual behaviour of the complainant which took place at or about the same time as that event "that the similarity cannot reasonably be explained as a coincidence" (section 41(3)(c)).

    8. Such questions are not to be allowed if their purpose is to establish material to impugn the credibility of the complainant as a witness. Leave may also be given if the evidence of the complainant's sexual behaviour goes no further than to rebut prosecution evidence.

    9. It is apparent that prima facie the restriction placed on the court's power to give leave seriously limits the opportunities for cross examination or the adducing of evidence on behalf of the accused. The limitation in section 41(3)(b) to conduct "at or about the same time" as the event charged would prima facie prohibit questions as to a continuous period of cohabitation or sexual activity, or as to individual events more than a very limited period before the event, the subject matter of the charge. The requirement that the sexual behaviour relied on must be so similar to the sexual activity which took place as part of the event charged or be so similar to any other sexual behaviour which took place "at or about the same time" as the event charged that the similarity cannot "reasonably be explained as a coincidence" is on the face of it very restrictive.

    10. The need to protect women from harassment in the witness box is fundamental. It must not be lost sight of but I suspect that the man or woman in the street would find it strange that evidence that two young people who had lived together or regularly as part of a happy relationship had had sexual acts together, must be wholly excluded on the issue of consent unless it is immediately contemporaneous. The question whether such evidence should be believed and whether it is sufficient to establish consent or even belief in consent are different matters. The man and woman in the street might also find it strange that evidence may be given and cross examination allowed as to belief in consent but not to consent itself when the same evidence was being relied on. That distinction has been recognised in the cases but without in any way resiling from a strong insistence on the need to protect women from humiliating cross examination and prejudicial but valueless evidence, it seems to me clear that these restrictions in section 41 prima facie are capable of preventing an accused person from putting forward relevant evidence which may be evidence critical to his defence, whether it is as to consent or to belief that the woman consented. If thus construed section 41 does prevent the accused from having a fair trial then it must be declared to be incompatible with the Convention.

    11. But the prima facie let alone the literal readings are not the end of the inquiry. Section 3 of the Human Rights Act 1998 requires that

    12. I was initially tempted to think that the words "at or about the same time as the event" could be given a wide meaning—certainly a few hours perhaps a few days when a couple were continuously together. But that meaning could not reasonably be extended to cover a few weeks which are relied on in the present case and I consider in the event that even if read with Article 6 they must be given a narrow meaning which would not allow the evidence or cross examination in the present case or in other than cases where the acts relied on were really contemporaneous.

    13. Section 41(3)(c) raises a different issue. Although if read literally or even perhaps purposively this provision is very restrictive, I think disproportionately restrictive, it is less precise than section 41 (3)(b). The section must be read and given effect in a way "which is compatible with the Convention rights" in so far as it is possible to do so. It seems to me that your Lordships cannot say that it is not possible to read section 41(3)(c) together with Article 6 of the Convention rights in a way which will result in a fair hearing. In my view section 41(3)(c) is to be read as permitting the admission of evidence or questioning which relates to a relevant issue in the case and which the trial judge considers is necessary to make the trial a fair one.

    14. I do not consider that the provisions of section 41(5) admitting rebuttal evidence are sufficient in themselves to avoid unfairness. They are limited in their effect.

    15. I agree with the statement in paragraph 46 of Lord Steyn's speech as to the effect of the decision today.

    16. Despite the somewhat unusual procedural route which this case has taken, I think that the right course is to dismiss the appeal. The case should now be referred back to the trial judge for him to continue the case in the light of the present decision.

LORD STEYN

My Lords,

I. The Judge's preliminary rulings

    17. In December 2000 the respondent (the defendant) was due to stand trial in the Crown Court on an indictment charging him with an offence of rape, the particulars being that on 14 June 2000 he raped the complainant. The defendant's defence is that sexual intercourse took place with the complainant's consent. It appears that he will alternatively rely on the defence that he believed that she consented.

    18. The Crown's case is that the complainant first met the defendant together with a friend on or about 26 May 2000. The complainant and the defendant's friend formed a sexual relationship. The complainant visited the friend at the flat which he was then sharing with the defendant. At about 9 pm on 13 June 2000 the complainant and the friend had sexual intercourse at the flat when the defendant was not there. Later, when the defendant returned, the complainant, the friend and the defendant went for a picnic on the riverbank of the Thames. The friend and the defendant drank whisky and beer. When they got back to the flat the friend collapsed. An ambulance was called and the friend was taken to hospital. Later, in the early hours of 14 June 2000, the defendant and the complainant left the flat intending to walk to the hospital. The defendant led the way and chose a route which took them close to the river. As they walked along the towpath the defendant fell down. The complainant's account is that she tried to help him to his feet, whereupon he pulled her to the ground and had sexual intercourse with her. Later that day the complainant made a complaint of rape to the police. The police interviewed the defendant. Following the advice of his solicitor he declined to answer questions. He read a prepared statement in which he asserted in very general terms that "she was never against this sexual relationship that we were having".

    19. According to the statement of facts and issues it is the defendant's case that:

    20. On 8 December 2000 a preparatory hearing took place pursuant to section 29 of the Criminal Procedure and Investigations Act 1996. Counsel for the defendant applied for leave to cross-examine the complainant about the alleged previous sexual relationship between them and to lead evidence about it. Relying on the provisions of section 41 of the Youth Justice and Criminal Evidence Act 1999 the judge ruled: (i) that the act of consensual sexual intercourse with the friend could be put to the complainant in cross-examination; (ii) that the complainant could not be cross-examined, nor could evidence be led, about her alleged sexual relationship with the defendant; (iii) that the prepared statement could not be put in evidence.

    21. The judge observed that this ruling would prima facie result in a breach of the right to a fair trial under article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998. Pursuant to section 35 of the 1996 Act the judge gave leave to the defendant to appeal to the Court of Appeal. The defendant exercised that right.

II. The decision of the Court of Appeal

    22. The defendant appealed against the judge's rulings. In giving the judgment of the Court of Appeal Rose LJ pointed out that the judge's first ruling, viz giving leave to cross-examine the complainant about sexual intercourse with the friend of the defendant, was made in error. No such leave had been sought.

    23. The judgment was, however, principally concerned with the rulings by the judge that the complainant could not be asked whether, nor could the defendant give evidence that, she had sexual intercourse with the defendant on occasions during the previous three weeks: R v Y, The Times, 13 February 2001. Rose LJ recorded a concession by the Crown, rightly made in his view, that the questioning and evidence in relation to the complainant's alleged prior sexual activity with the defendant was admissible under section 41(3)(a) of the 1999 Act in relation to the defendant's belief in the complainant's consent: see section 1 of the Sexual Offences (Amendment) Act 1976. It followed that the judge's ruling in entirely excluding such evidence was wrong. On the other hand, Rose LJ concluded that the effect of the Act is that the alleged previous sexual relationship is inadmissible on the issue of consent. On this supposition Rose LJ further stated that the Crown accepted that the trial judge will, in due course, have to direct the jury that the evidence of the complainant's consensual activity with the defendant during the period before the alleged rape is solely relevant to the question of the defendant's belief as to consent and is not relevant to the question of whether the complainant in fact consented. However, Rose LJ was of the view that such a direction might lead to an unfair trial because a previous sexual relationship may be relevant to the issue of consent as well as belief in consent.

    24. Allowing the appeal the Court of Appeal observed:

On 31 January 2001 the Court of Appeal certified the following question:

At the same time the Court of Appeal granted the Crown leave to appeal to the House of Lords.

III. The Secretary of State's intervention

    25. Counsel for the defendant indicated that on the appeal to the House he would invite the House to read down section 41 of the 1999 Act in accordance with section 3 of the Human Rights Act 1998 so that section 41 could be given effect in a way that was compatible with the fair trial guarantee under article 6 of the Convention, and if that was not possible, he would invite the House to make a declaration of incompatibility. In these circumstances the Secretary of State for the Home Department applied for leave to intervene at this stage. An Appeal Committee recommended that leave be given to the Secretary of State to intervene. In its 31st Report of 7 March 2001 drafted by Lord Hope of Craighead the Appeal Committee observed [2001] 1 WLR 789, 792-793:

In the result the House has had the advantage of submissions not only on behalf of both the Director of Public Prosecutions and the defendant but also on behalf of the Secretary of State. On the hearing of the appeal counsel for the Secretary of State referred to parts of the preceding Parliamentary debates but he made clear that he was not doing so as an aid to construction of the statutory language under the rule in Pepper v Hart [1993] AC 593. Instead he used this material, together with other materials, to identify the mischief which led to the enactment of the statute.

    26. On the hearing of the appeal counsel for the Director of Public Prosecutions informed the House that the same issue arises in 13 other criminal cases. It is therefore a matter of some urgency.

IV. The context of section 41

    27. Following the Second World War the general principle of the equality of men and women in all spheres of life has gradually become established. In the aftermath of the sexual revolution of the sixties the autonomy and independence of women in sexual matters has become an accepted norm. It was this change in thinking about women and sex which made possible the decision of the House of Lords in R v R [1992] 1 AC 599 that the offence of rape may be committed by a husband upon his wife. It was a dramatic reversal of old fashioned beliefs. Discriminatory stereotypes which depict women as sexually available have been exposed as an affront to their fundamental rights. Nevertheless, it has to be acknowledged that in the criminal courts of our country, as in others, outmoded beliefs about women and sexual matters lingered on. In recent Canadian jurisprudence they have been described as the discredited twin myths, viz "that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief": R v Seaboyer (1991) 83 DLR (4th) 193, 258, 278C per McLachlin J. Such generalised, stereotyped and unfounded prejudices ought to have no place in our legal system. But even in the very recent past such defensive strategies were habitually employed. It resulted in an absurdly low conviction rate in rape cases. It also inflicted unacceptable humiliation on complainants in rape cases.

    28. In Director of Public Prosecutions v Morgan [1976] AC 182 the House of Lords held that in a trial for rape a subjective belief by the defendant that the victim consented to sexual intercourse afforded a defence. Following this decision the Advisory Group on the Law of Rape was established. It produced the so-called Heilbron Report (1975) (Cmnd 6352). It treated previous sexual association between the complainant and the accused as potentially relevant but advised that in general the previous sexual history of the complainant with other men was irrelevant. Parliament enacted legislation which subjected the admission of evidence of the previous sexual experience of a complainant with third parties to a leave requirement. It did not touch on prior sexual contact between the complainant and the accused: section 2(1) of the Sexual Offences (Amendment) Act 1976. Section 2(2) provides that the judge shall only give leave "if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked." The statute did not achieve its object of preventing the illegitimate use of prior sexual experience in rape trials. In retrospect one can now see that the structure of this legislation was flawed. In respect of sexual experience between a complainant and other men, which can only in the rarest cases have any relevance, it created too broad an inclusionary discretion. Moreover, it left wholly unregulated questioning or evidence about previous sexual experience between the complainant and the defendant even if remote in time and context. There was a serious mischief to be corrected.

V. Section 41

    29. Sections 41 to 43 of the 1999 Act imposed wide restrictions on evidence and questioning about a complainant's sexual history. These provisions are contained in Chapter III of Part II of the statute and appear under the heading "Protection of Complainants in Proceedings for Sexual Offences". The material part of section 41 reads:

(b)

(2)

(a)

(b)

(3)

(a)

(b)

(c)

(i)

(ii)

(4)

(5)

(a)

(b)

Section 41 imposes the same exclusionary provisions in respect of a complainant's sexual experience with the accused as with other men. This is the genesis of the problem before the House. There are differences which need to be explored. In this task I have been greatly assisted primarily by the careful and incisive arguments of counsel but also by an as yet unpublished comprehensive review of the literature, comparative jurisprudence, and different legislative models and proposals for reform prepared by Neil Kibble of the Department of Law, University of Wales Aberystwyth "The Admissibility of Prior Sexual History with the Defendant in Sexual Offence Cases" (February 2001). My understanding is that in revised form it will be published in the Cambrian Law Review. It amplifies his earlier paper "The Sexual History Provisions, Charting a course between inflexible legislative rules and wholly untrammelled judicial discretion" [2000] Crim LR 274.

VI. Sexual experience with the accused contrasted with sexual experience with other men.

    30. Although not an issue before the House, my view is that the 1999 Act deals sensibly and fairly with questioning and evidence about the complainant's sexual experience with other men. Such matters are almost always irrelevant to the issue whether the complainant consented to sexual intercourse on the occasion alleged in the indictment or to her credibility. To that extent the scope of the reform of the law by the 1999 Act was justified. On the other hand, the blanket exclusion of prior sexual history between the complainant and an accused in section 41(1), subject to narrow categories of exception in the remainder of section 41, poses an acute problem of proportionality.

    31. As a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent. It is a species of prospectant evidence which may throw light on the complainant's state of mind. It cannot, of course, prove that she consented on the occasion in question. Relevance and sufficiency of proof are different things. The fact that the accused a week before an alleged murder threatened to kill the deceased does not prove an intent to kill on the day in question. But it is logically relevant to that issue. After all, to be relevant the evidence need merely have some tendency in logic and common sense to advance the proposition in issue. It is true that each decision to engage in sexual activity is always made afresh. On the other hand, the mind does not usually blot out all memories. What one has been engaged on in the past may influence what choice one makes on a future occasion. Accordingly, a prior relationship between a complainant and an accused may sometimes be relevant to what decision was made on a particular occasion.

    32. In a balanced review of the voluminous critical literature in the United Kingdom between 1975 and 1999 Mr Kibble has shown that the principal focus throughout has been on the irrelevance and prejudicial impact of sexual experience of the complainant with other men. The target of the literature was the 1976 Act. When the issue of the relevance of sexual experience between a complainant and a defendant was raised there was broad agreement that such evidence is sometimes relevant (e.g. an ongoing relationship) and sometimes irrelevant (e.g. an isolated episode in the past). There was no case made out in the literature for the blanket exclusionary scheme incorporated in section 41 in respect of prior sexual experience between a complainant and accused. Not surprisingly the legislative technique adopted in section 41 has been criticised. Professor Diane Birch ("A Better Deal for Vulnerable Witnesses?" [2000] Crim LR 223, 248), trenchantly commented:

It is difficult to dispute this assessment. After all, good sense suggests that it may be relevant to an issue of consent whether the complainant and the accused were ongoing lovers or strangers. To exclude such material creates the risk of disembodying the case before the jury. It also increases the danger of miscarriages of justice. These considerations raise the spectre of the possible need for a declaration of incompatibility in respect of section 41 under section 4 of the Human Rights Act 1998.

    33. Counsel for the Secretary of State submitted that section 41 was based on the decision of the Supreme Court of Canada in R v Seaboyer 83 DLR (4th) 193. In that case a first attempt to introduce "rape-shield" provisions directed against the admissibility of sexual history evidence in rape cases was held to be invalid under section 7 of the Charter of Rights and Freedoms. By a majority the Supreme Court indicated what kind of provisions would be lawful. Following R v Seaboyer section 276 of the Criminal Code was amended. Subsequently the Supreme Court held that section 276 as amended was valid. As amended it was not viewed as a blanket exclusion: R v Darrach (2000) 191 DLR (4th) 539. Unfortunately, the Secretary of State's understanding of the Canadian position was flawed. R v Seaboyer is largely concerned with the irrelevance of sexual experience between the complainant and third parties. In her leading judgment McLachlin J placed general reliance upon an article of Galvin, who emphasises the probative value of prior sexual conduct between a complainant and an accused to the issue of consent: "Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade" (1986) 70 Minn LRev 763. Moreover, McLachlin J made a telling comment on prior sexual history with the accused. It is to the following effect, at 83 DLR (4th) 193, 280D:

R v Seaboyer does not justify the breadth of the exclusionary provisions of section 41 in respect of previous sexual experience between a complainant and a defendant. The amended section 276 of the Canadian statute is also in more flexible terms than section 41. Section 276 reads:

(c)

(a)

(b)

(c)

It will be observed that subsection (1) is directed at impermissible uses of the evidence. It is not a blanket prohibition. It has an inbuilt flexibility as appears from the balancing provision of subsection (2) and particularly the words of paragraph (c). The Canadian model is therefore in substantially less restrictive terms than section 41. Moreover, it is noteworthy that a law reform proposal in New South Wales explicitly accepts that the fact that the complainant engaged in sexual activity with the accused in the past may be relevant to the question whether she consented to sexual activity on the occasion in question: New South Wales Law Reform Commission Report (1998) (No 87) on section 409B of the Crimes Act 1900. A similar flexible approach is reflected in a discussion paper of the New Zealand Law Commission: "Evidence Law: Characters and Credibility" (1997) (Preliminary Paper 27) published in February 1997. Commonwealth developments do not support the breadth of the exclusionary provisions of section 41 in respect of the potential relevance of the sexual experience of a complainant with an accused.

VII. The interpretation of section 41

    34. In order to assess whether section 41 is incompatible with the convention right to a fair trial, it is necessary to consider what evidence it excludes. The mere fact that it excludes some relevant evidence would not by itself amount to a breach of the fair trial guarantee. On the other hand, if the impact of section 41 is to deny the right to accused in a significant range of cases from putting forward full and complete defences it may amount to a breach.

    35. Counsel for the Secretary of State has argued that unfairness to an accused will rarely arise because evidence of sexual experience between a complainant and an accused will almost always be admissible on the basis of the defence that the accused thought that the complainant consented. His argument has assumed that in practice an accused will almost invariably be able to put forward both defences. Counsel for the defendant has persuaded me that the defence of belief in consent would often have no air of reality and would in practice not be available, eg in cases where there are diametrically opposite accounts of the circumstances of the alleged rape, with the complainant insisting that it was perpetrated with great violence and the accused saying that the complainant took the initiative in an act of consensual intercourse. In any event, it does not meet the difficulty that the judge's direction to the jury would always have to be to the effect that the past experience between the complainant and the accused is irrelevant to the issue of consent. I would reject the submissions of counsel for the Secretary of State on this point. In these circumstances counsel for the Secretary of State accepts that, despite the interlocutory nature of the proceedings, the House must now grapple with the problem whether, measured against the guarantee of a fair trial, the breadth of the exclusionary provisions of section 41 in respect of sexual experience between a complainant and the defendant are justified and proportionate. The position of counsel for the Secretary of State on this point is realistic. To postpone the decision until after the conclusion of a number of pending trials, which raise the issue, would be unfair to individuals and contrary to the public interest.

    36. Counsel for the Secretary of State further relied on the principle that, in certain contexts, the legislature and the executive retain a discretionary area of judgment within which policy choices may legitimately be made: see Brown v Stott [2001] 2 WLR 817. Clearly the House must give weight to the decision of Parliament that the mischief encapsulated in the twin myths must be corrected. On the other hand, when the question arises whether in the criminal statute in question Parliament adopted a legislative scheme which makes an excessive inroad into the right to a fair trial the court is qualified to make its own judgment and must do so.

    37. The methodology to be adopted is important. In a helpful paper under the title "The Act of the Possible: Interpreting Statutes under the Human Rights Act" [1998] EHRLR 665 Lord Lester of Herne Hill QC has summarised the correct approach, at p 674:

See also Bertha Wilson J, "The Making of a Constitution: Approaches to Judicial Interpretation" (1988) PL 370, 371-372; and David Feldman, "Proportionality and The Human Rights Act 1998" in The Principle of Proportionality in the Laws of Europe (1999), pp117, 122-123.

    38. It is well established that the guarantee of a fair trial under article 6 is absolute: a conviction obtained in breach of it cannot stand. R v Forbes, [2001] 2 WLR 1, 13, para 24. The only balancing permitted is in respect of what the concept of a fair trial entails: here account may be taken of the familiar triangulation of interests of the accused, the victim and society. In this context proportionality has a role to play. The criteria for determining the test of proportionality have been analysed in similar terms in the case law of the European Court of Justice and the European Court of Human Rights. It is not necessary for us to re-invent the wheel. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 Lord Clyde adopted a precise and concrete analysis of the criteria. In determining whether a limitation is arbitrary or excessive a court should ask itself:

The critical matter is the third criterion. Given the centrality of the right of a fair trial in the scheme of the Convention, and giving due weight to the important legislative goal of countering the twin myths, the question is whether section 41 makes an excessive inroad into the guarantee of a fair trial.

    39. Subject to narrow exceptions section 41 is a blanket exclusion of potentially relevant evidence. Section 41 must however be construed in order to determine its precise exclusionary impact on alleged previous sexual experience between the complainant and the accused. Two processes of interpretation must be distinguished. First, ordinary methods of purposive and contextual interpretation may yield ways of minimising the prima facie exorbitant breadth of the section. Secondly, the interpretative obligation in section 3(1) of the 1998 Act may come into play. It provides that "so far as it is possible to do so, primary legislation . . . must be read and given effect in a way which is compatible with the Convention rights". It is a key feature of the 1998 Act.

    40. Three possible ways of minimising the excessive breadth of section 41 must be considered. The first possible gateway is to be found in section 41(3)(b), viz:

An example covered by this provision would be where it is alleged that the complainant invited the accused to have sexual intercourse with her earlier in the evening. In my opinion, however, neither ordinary methods of interpretation nor the interpretative obligation under section 3 of the 1998 Act enables one to extend the temporal restriction to days, weeks or months. Section 41(3)(b) acknowledges by its own terms that previous sexual experience between a complainant and an accused may be relevant but then restricts the admission of such evidence by an extraordinarily narrow temporal restriction.

    41. The second gateway suggested by counsel for the Director of Public Prosecutions is the provision in section 41(5)(b) enabling evidence adduced by the prosecution to be rebutted or explained by or on behalf of the defence. The suggestion is that the Crown could adduce evidence which will enable the defence to lead evidence of previous sexual experience in rebuttal. This is not a coherent and satisfactory solution. It depends on the goodwill and co-operation of the prosecutor. A defendant has the right in a criminal trial to offer a full and complete defence. I would reject this suggested solution.

    42. The third gateway is section 41(3)(c). It permits evidence where

(i)

This gateway is only available where the issue is whether the complainant consented and the evidence or questioning relates to behaviour that is so similar to the defence's version of the complainant's behaviour at the time of the alleged offence that it cannot reasonably be explained as a coincidence. An example would be the case where the complainant says that the accused raped her; the accused says that the complainant consented and then after the act of intercourse tried to blackmail him by alleging rape; and the defence now wishes to ask the complainant whether on a previous occasion she similarly tried to blackmail the accused.

    43. Rightly none of the counsel appearing before the House were prepared to argue that on ordinary methods of interpretation section 41(3)(c) can be interpreted to cover, for example, cases similar to the one before the House where it is alleged that there was a previous sexual experience between the complainant and the accused on several occasions during a three week period before the occasion in question. Let me consider ordinary methods of interpretation in a little more detail. One could say that section 41(3)(c) is a statutory adoption of the striking similarity test enunciated in R v Boardman [1975] AC 421. So interpreted section 41(3)(c) is a narrow gateway, which will only be available in rare cases. Alternatively, one could argue that section 41(3)(c) involves the test of high probative force of the evidence, which makes it just to admit it, in accordance with the principle stated in Director of Public Prosecutions v P [1991] 2 AC 447. Even if this approach was consistent with the language of section 41, the threshold requirement would be too high: often the evidence will be relevant but not capable of being described as having "high probative value". These ways of interpreting section 41(3)(c) cannot solve the problem of the prima facie excessive inroad on the right to a fair trial. It is important to concentrate in the first place on the language of section 41. Making due allowance for the words "in any respect" in section 41(3)(c), the test "that the similarity cannot reasonably be explained as a coincidence" is inapt to allow evidence to be admitted or questioning to take place that, for example, (i) the complainant invited the accused at an office party on a Friday to come to her flat on the Sunday to make love to her or (2) that the complainant and the accused had sexual relations on several occasions in the previous month. While common sense may rebel against the idea that such evidence is never relevant to the issue of consent, that is the effect of the statute. In my view ordinary methods of purposive construction of section 41(3)(c) cannot cure the problem of the excessive breadth of the section 41, read as a whole, so far as it relates to previous sexual experience between a complainant and the accused. Whilst the statute pursued desirable goals, the methods adopted amounted to legislative overkill.

    44. On the other hand, the interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature: R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, per Lord Cooke of Thorndon, at p 373F; and my judgment, at p 366B. The White Paper made clear that the obligation goes far beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative provision: see "Rights Brought Home: The Human Rights Bill" (1997) (Cm 3782), para 2.7. The draftsman of the Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: section 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: section 3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it: compare, for example, articles 31 to 33 of the Vienna Convention on the Law of Treaties (1980) (Cmnd 7964). Section 3 qualifies this general principle because it requires a court to find an interpretation compatible with Convention rights if it is possible to do so. In the progress of the Bill through Parliament the Lord Chancellor observed that "in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility" and the Home Secretary said "We expect that, in almost all cases, the courts will be able to interpret the legislation compatibility with the Convention": Hansard (HL Debates), 5 February 1998, col 840 (3rd Reading) and Hansard (HC Debates), 16 February 1998, col 778 (2nd Reading). For reasons which I explained in a recent paper, this is at least relevant as an aid to the interpretation of section 3 against the executive: "Pepper v Hart: A re-examination" (2001) 21 Oxford Journal of Legal Studies 59. In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise: R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 132A-B per Lord Hoffmann. There is, however, no limitation of such a nature in the present case.

    45. In my view section 3 requires the court to subordinate the niceties of the language of section 41(3)(c), and in particular the touchstone of coincidence, to broader considerations of relevance judged by logical and common sense criteria of time and circumstances. After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under section 3 to read section 41, and in particular section 41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible. The result of such a reading would be that sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under section 41(3)(c). On the other hand, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, eg an isolated episode distant in time and circumstances. Where the line is to be drawn must be left to the judgment of trial judges. On this basis a declaration of incompatibility can be avoided. If this approach is adopted, section 41 will have achieved a major part of its objective but its excessive reach will have been attenuated in accordance with the will of Parliament as reflected in section 3 of the 1998 Act. That is the approach which I would adopt.

VIII.

The task of trial judges

    46. It is of supreme importance that the effect of the speeches today should be clear to trial judges who have to deal with problems of the admissibility of questioning and evidence on alleged prior sexual experience between an accused and a complainant. The effect of the decision today is that under section 41(3)(c) of the 1999 Act, construed where necessary by applying the interpretative obligation under section 3 of the Human Rights Act 1998, and due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the convention. If this test is satisfied the evidence should not be excluded.

IX. Application of the interpretation adopted.

    47. The appeal before the House concerns a concrete case. It involves the permissibility of questioning a complainant about an alleged recent sexual relationship between her and the defendant, and the admissibility of evidence on that point. These are matters for the trial judge to rule on at the resumed trial. But in my view he must do so on the broader interpretation of section 41(3)(c) required by section 3 of the 1998 Act.

X. Disposal

    48. I would decline to make the rulings sought by the Director of Public Prosecutions and the Secretary of State. Given the terms of this speech it is unnecessary to answer the certified question. I would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    49. Rape is the most humiliating, distressing and cynical of crimes. It presents itself in various ways to the prosecutor. Sometimes it is accompanied by acts of extreme violence. In such cases proof that the crime has been perpetrated will be little more than a formality and the more difficult task is likely to be to prove the identity of the perpetrator. But more often than not very little, if any, violence is used, identity is not in issue as the parties were known to each other and the defendant admits that on the occasion in question he had sexual intercourse. The sole issue for the prosecutor in these cases will be whether it can be proved that the complainant did not consent to the sexual intercourse. The crime is constituted by proof of the fact of sexual intercourse with a person who at the time of the intercourse did not consent to it, accompanied by proof that at the time the defendant either knew that the person did not consent to the intercourse or was reckless as to whether that person consented to it: Sexual Offences Act 1956, as substituted by section 142 of the Criminal Justice and Public Order Act 1994. The absence of consent is, in these cases, the crucial issue. This is a question of fact, which must be resolved in the light of the evidence.

    50. It is notorious that proof that the complainant did not consent to an admitted act of sexual intercourse raises difficult questions which, in the typical case, resolve themselves into issues of credibility. In its modern form the definition of the crime recognises that every woman has the right, on each and every occasion, to say "no". As Gonthier J put it in R v Darrach (2000) 191 DLR (4th) 539, 568, actual consent must be given for each instance of sexual activity. The crime has now been extended to the rape of a man by another man: Sexual Offences Act 1956, section 1(1) as substituted by section 142 of the Criminal Justice and Public Order Act 1994. So every man also has that right. But it is one thing for the law to recognise these essential facts. It is quite another for the law to put its principles into practice. That, in the final analysis, is what this case is about.

Background

    51. It is plain a balance must be struck between the right of the defendant to a fair trial and the right of the complainant not to be subjected to unnecessary humiliation and distress when giving evidence. The right of the defendant to a fair trial has now been reinforced by the incorporation into our law of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by the Human Rights Act 1998. But the principles which are enshrined in that article have for long been part of our common law. The common law recognises that a defendant has the right to cross-examine the prosecutor's witnesses and to give and lead evidence. The guiding principle as to the extent of that right is that prima facie all evidence which is relevant to the question whether the defendant is guilty or innocent is admissible. As the fact that the act of sexual intercourse was without the consent of the complainant is one of the essential elements in the charge which the prosecutor must establish, the defendant must be given an opportunity to cross-examine the prosecutor's witnesses and to give and lead evidence on that issue. That is an essential element of his right to a fair trial.

    52. But the extent to which a defendant may go in the exercise of his right to be given that opportunity is a matter to which the common law has failed to provide a satisfactory answer. The problem is at its most acute in cases where the parties to the alleged rape are known to each other and have had some kind of a relationship in the past. In their joint written intervention the Rape Crisis Federation of England and Wales, the Campaign to End Rape, the Child and Woman Abuse Studies Unit and Justice for Women state that the evidence is that this is the most frequent type of rape, the least likely to be reported to the police and, when proceedings are brought, the least likely to result in a conviction. The statistics to which they refer bear out this statement.

    53. K Painter "Wife Rape, Marriage and Law: Survey Report, Key Findings and Recommendations" (Manchester University, 1991), reporting on a sample of 1007 women in 11 cities, stated that 1 in 4 of those interviewed said that they had been the victims of rape or attempted rape, that the most common perpetrators were current and ex partners and that 91 per cent of those interviewed had told no-one. Home Office Statistics quoted in Speaking Up for Justice, Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (Home Office, June 1998) indicated that, while in 1985 35 per cent of reported rapes occurred within an intimate relationship and 30 per cent were by strangers, by 1997 these percentages had altered to 43 per cent and 12 per cent respectively. On the other hand the conviction rate for rape had decreased markedly over the same period. In 1985 24 per cent of rapes reported to the police resulted in a conviction. By 1996 the number of rape complaints to the police had trebled but the conviction rate had fallen to 9 per cent. Unpublished research for the Home Office in 1997 concluded that there was a link between the increased number of complaints involving intimates and former intimates and the decrease in the conviction rate: "The Processing of Rape Cases by the Criminal Justice System" (1997) (Jessica Harris).

    54. To a substantial extent these studies may be thought to confirm what is already obvious. In an as yet unpublished paper "The Admissibility of Prior Sexual History with the Defendant in Sexual Offence Cases" (University of Wales Aberystwyth, February 2001) in which he conducted a review of the critical and reform literature on this subject in the United Kingdom between 1975 and 1999, Neil Kibble observed, at p 23, that the literature was concerned almost exclusively with the problems surrounding the admissibility of prior sexual history with third parties and that little systematic attention had been paid to the question of the relevance and admissibility of prior sexual history with the accused. But it is well known that women in general are deterred from making complaints that they have been raped by a person with whom they have or previously had a relationship. It is distressing enough for women to have to give evidence in these cases. They are unwilling to face the prospect of being further humiliated by questions directed to their previous or subsequent sexual history. The low conviction rate acts as a further deterrent. The humiliation for the woman is much increased if no conviction results after she has been subjected to that kind of questioning.

    55. These and studies undertaken in other countries, many of which were referred to by L'Heureux-Dubé and Gonthier JJ in their partial dissent in R v Seaboyer [1991] 2 SCR 577, indicate that the balance between the rights of the defendant and those of the complainant is in need of adjustment if women are to be given the protection under the law to which they are entitled against conduct which the law says is criminal conduct. As McLachlin J said, at p 609B-E, in the judgment which she delivered on behalf of the majority in that case, it is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues in the case. A law which prevents the trier of fact from getting at the truth by excluding relevant evidence runs counter to our fundamental conceptions of justice and what constitutes a fair trial. But there is a risk that juries may be diverted from the real issues in the trial by evidence about the complainant's sexual behaviour which is not directly relevant to the offence charged: R v Seaboyer [1991] 2 SCR 577, 634A-D; R v Darrach 191 DLR (4th) 539, 560-561, Kibble, p 41. A balance must be struck between the probative value of the evidence and its potential prejudice.

    56. Section 41 of the Youth Justice and Criminal Evidence Act 1999 has been designed to achieve that adjustment. It is clear from the background against which that section was enacted and from its own terms that this is the mischief which it was intended to address. It is also clear from what has been happening in other jurisdictions where similar provisions have been introduced that there was a choice to be made as to how far the balance should be adjusted in favour of the public interest while preserving the right to a fair trial. A wide variety of measures to which I shall refer later, commonly known as "rape-shield" provisions, have been enacted to restrict the right of a defendant who is on trial for a sexual offence to cross-examine and lead evidence of the complainant's sexual conduct on other occasions.

    57. Section 2 of the Sexual Offences (Amendment) Act 1976 left this matter to the discretion of the trial judge. The original Bill had contained complicated provisions which were designed to restrict the admissibility of such evidence, but these were removed and replaced by a general test of unfairness to the defendant. Section 2(2) of the Act provided that the judge should give leave if, and only if, he was satisfied that it would be unfair to the defendant to refuse to allow the evidence to be adduced or the question to be asked. But the statistics showed that the object of that measure, which was to protect complainants against unnecessary evidence and questions about their previous sexual experience, was not being achieved. They raised doubts as to whether it was satisfactory, in this very difficult and sensitive area, to leave the decision whether leave should be given entirely to the trial judge. The question which has been raised in this case is whether the new legislation, which greatly restricts the discretion given to the trial judge, is compatible with the defendant's Convention right to a fair trial.

    58. I would take, as my starting point for examining section 41, the proposition that there are areas of law which lie within the discretionary area of judgment which the court ought to accord to the legislature. As I said in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 380-381E, it is appropriate in some circumstances for the judiciary to defer, on democratic grounds, to the considered opinion of the elected body as to where the balance is to be struck between the rights of the individual and the needs of society: see also Brown v Stott [2001] 2 WLR 817 per Lord Bingham of Cornhill, at p 835A-B, and Lord Steyn at p 842F-G. I would hold that prima facie the circumstances in which section 41 was enacted bring this case into that category. As I shall explain in more detail later (see paragraph 90, post), the right to lead evidence and the right to put questions with which that section deals are not among the rights which are set out in unqualified terms in article 6 of the Convention. They are open to modification or restriction so long as this is not incompatible with the right to a fair trial. The essential question for your Lordships, as I see it, is whether Parliament acted within its discretionary area of judgment when it was choosing the point of balance that is indicated by the ordinary meaning of the words used in section 41. If it did not, questions will arise as to whether the incompatibility that results can be avoided by making use of the rule of interpretation in section 3 of the Human Rights Act 1998, failing which whether a declaration of incompatibility should be made. But I think that the question which I have described as the essential question must be addressed first. As Lord Woolf CJ said in Poplar Housing and Regeneration Community Association Ltd v Donaghue [2001] EWCA Civ 595, para 75, unless the legislation would otherwise be in breach of the Convention section 3 of the 1998 Act can be ignored. So the courts should always ascertain first whether, absent section 3, there would be any breach of the Convention.

The facts

    59. I shall need to look at section 41 in more detail. But I must first set out briefly the facts which have given rise in this case to the question whether a sexual relationship between a defendant and a complainant may be relevant to the issue of consent so as to render its exclusion by that section a contravention of the defendant's right to a fair trial. The facts are important, because it is to the facts of the particular case as alleged by the defendant that any issues about any possible incompatibility with his Convention right to a fair trial must be directed.

    60. The incident in which the respondent is alleged to have raped the complainant took place in the early hours of 14 June 2000 beside the river Thames as they were walking along the towpath. As they walked along the path the respondent fell down. The complainant states that when she tried to help him to his feet he pulled her to the ground and had sexual intercourse with her without her consent. The respondent's case is that on the occasion in question the complainant initiated consensual intercourse. He states that this was part of a consensual sexual relationship which covered a period of about three weeks prior to 14 June 2000 during which he had sexual relations with her, including sexual intercourse, in his flat on various occasions. The last of these was about one week before the alleged rape. In short, the respondent's case is that he did not rape the complainant because she consented to the act of intercourse. He seeks leave to cross-examine her and lead evidence about their previous relationship to support his defence that this was an act of consensual intercourse. No doubt any cross-examination which is directed to that relationship will tend to undermine her credibility on this vital issue.

    61. The history is complicated by the fact that the respondent was sharing his flat with another man with whom the complainant is said to have formed an intimate relationship. It is said that she used to visit the other man at the flat, and that at about 9 pm on 13 June 2000 she had sexual intercourse with him in the flat when the respondent was not there. On the occasion of the alleged rape the respondent and the complainant were walking from the flat to a hospital where the other man had been taken after collapsing on his return from a picnic with the complainant that evening close to the river bank.

    62. The case came before the trial judge for a preliminary hearing under sections 29 to 31 of the Criminal Procedure and Investigations Act 1996 on 8 December 2000. He was asked to rule on the extent to which cross-examination of the complainant would be permitted in the light of section 41 of the 1999 Act. He held that the complainant could be cross-examined about the act of sexual intercourse which took place between her and the other man a few hours before the occasion of the alleged rape and about any other sexual activity she may have had with other men at or about the same time under section 41(3)(b). But he said that cross-examination about her previous relationship with the respondent would not be permitted to any extent under either section 41(3)(b) or section 41(3)(c).

    63. The respondent appealed against this ruling to the Court of Appeal (Criminal Division) under section 35(1) of the Criminal Procedure and Investigations Act 1996 with the leave of the trial judge. At the hearing of the appeal the respondent's counsel, Mr Rook QC, who did not appear in the court below, raised for the first time the question whether cross-examination and evidence directed to the complainant's prior sexual activity with the respondent would be admissible under section 41 in relation to a further defence that he honestly believed that she was consenting to intercourse: see Director of Public Prosecutions v Morgan [1976] AC 182. The Crown conceded that cross-examination and evidence directed to this issue would be admissible under section 41(3)(a) of the Act: para 34 of the Court of Appeal's judgment. For his part, Mr Rook did not seek to suggest that there was such a degree of similarity in the present case as would permit questions to be asked under section 41(3)(c): para 19.

    64. As to the merits of the appeal, the Court of Appeal [2001] EWCA Crim 4 held that the judge was right to conclude that cross-examination and evidence about the complainant's recent consensual sexual activity with the respondent would not be admissible under section 41(3)(b): para 34. But the court held that the judge was wrong in saying that questions and evidence about the complainant's sexual behaviour with the respondent's friend or with other third parties on the night of the alleged rape would be admissible under section 41(3)(b) because the court was of the opinion that this material was not relevant: paragraph 35. The appeal was allowed however on the ground that the judge was wrong to hold that evidence and questions about the complainant's sexual behaviour with the respondent was inadmissible. This was because, as the Crown conceded, that evidence was permissible under section 41(3)(a) in relation to the defence of belief as to consent: para 35.

    65. However, Rose LJ said that the court respectfully differed from the view that previous recent consensual intercourse between the complainant and the defendant was irrelevant to whether she consented on the occasion said to give rise to rape, and that it might be that a fair trial would not be possible if there could not be adduced, in support of the defence of consent, evidence as to the complainant's recent consensual activity with the defendant: paras 30, 33. It is those observations that have led to this appeal by the Crown, for which the Court of Appeal granted leave. On 7 March 2001 the House gave leave to the Secretary of State for the Home Department to be joined as a party to the appeal for the reasons given in the 31st Report from the Appeal Committee of that date: [2001] 1 WLR 789.

    66. Your Lordships are not being asked in this case to reconsider the decision in Director of Public Prosecutions v Morgan [1976] AC 182. The proper limits of that defence currently under examination by the government following an independent review, the results of which are set out in a consultation paper entitled "Setting the Boundaries, Reforming the Law on Sex Offences" (Home Office, July 2000), para 2.13. For the time being it may be noted, as it was pointed out in Jamieson v H M Advocate 1994 SLT 537, 541J-K by the High Court of Justiciary, that as the law stands difficult questions of fact may arise as to whether, if he can give no reasonable grounds for his belief, the accused genuinely believed at the time that the woman was consenting or was reckless or indifferent as to the matter of consent. For the purposes of this case it must be assumed that cross-examination and evidence which is directed to that issue will be permitted at the trial, in accordance with the concession by the Crown, under reference to section 41(3)(a) of the 1999 Act. The issue as to the respondent's honest belief that the complainant was consenting to intercourse is not an issue of consent.

    67. All that needs to be said about this part of the respondent's case is that the extent to which the complainant may be cross-examined about her previous relationship with the respondent, and the extent to which the respondent may give evidence about it, for the purposes of the defence of honest belief will be subject at all times to control by the court under section 41(2)(b). The court has an overriding duty under that paragraph to ensure that any evidence or question for which leave is given is permitted only to the extent that to refuse leave would render a conclusion on any relevant issue in the case unsafe.

    68. But the facts which the respondent wishes to elicit by cross-examination and to adduce in evidence in support of the defence of consent bring into sharp focus the following questions: (a) whether the questions and evidence will be admissible under section 41 when that section is construed according to ordinary common law principles and (b) if not, whether to exclude them would be compatible with his Convention right to a fair trial. If both of these questions are answered in the negative, two further questions will arise. The first is whether the critical parts of section 41 can be given a different meaning by using the techniques of statutory interpretation indicated by section 3 of the Human Rights Act 1998, which requires that the legislation must be read and given effect to, so far as it is possible to do so, in a way which is compatible with the respondent's Convention right. If that cannot be done, consideration will have to be given to the question whether to make a declaration of incompatibility under section 4 of the 1998 Act.

    69. It may be noted in passing that a statement of compatibility was attached to the Bill before second reading that its provisions were compatible with the Human Rights Act 1998. Statements to that effect are now required by section 19 of the Act, which was brought into force on 24 November 1998: (SI 1998/2882). But Mr Pannick QC for the Secretary of State did not seek to rely on this statement in the course of his argument. I consider that he was right not to do so. These statements may serve a useful purpose in Parliament. They may also be seen as part of the parliamentary history, indicating that it was not Parliament's intention to cut across a Convention right: Lord Irvine of Lairg LC "The Development of Human Rights in Britain under an Unincorporated Convention on Human Rights" (1998) PL 221, 228. No doubt they are based on the best advice that is available. But they are no more than expressions of opinion by the minister. They are not binding on the court, nor do they have any persuasive authority.

The ordinary meaning of section 41

    70. I propose in this section to examine in detail only those provisions of section 41 that are directly in issue in this case. It is not possible in this case to solve all the problems that may arise. But it may be helpful for me to state what I understand to be its basic structure.

    71. Section 41 of the 1999 Act contains the following essential elements:

(a)

    it applies to any trial at which a person is charged with a sexual offence (see subsection (1) which extends, among other things, to a wide range of sexual offences involving children as well as those involving women who complain that they have been raped);

(b)

    it contains a general prohibition against the adducing by the accused of evidence or his asking of questions in cross-examination about any sexual behaviour of the complainant except with the leave of the court (see subsection (1), which is to be read with the definition of "sexual behaviour" in section 42(1)(c));

(c)

    it provides a requirement that leave be given only on an application made by or on behalf of the accused (see subsection (2), as to which section 43 lays down the procedure);

(d)

    it places a duty on the court to grant leave only if it is satisfied that the evidence or question falls within one or other of the two qualifying subsections (see subsection (2)(a), and subsections (3) and (5)); and

(e)

    it places an overriding duty on the court to grant leave only if to refuse to do so might have the result of rendering a conclusion on a relevant issue unsafe (see subsection (2)(b), which is to be read with the definition of "relevant issue" in section 42(1)(a)).

    72. It is clear that this structure has been designed in such a way as to balance the competing interests of the complainant who seeks protection from the court and the accused's right to a fair trial. The section leans towards the protection of the complainant. The protection extends to questions and evidence about sexual behaviour after, as well as before, the event giving rise to the charge. It ends the assumption, widely held hitherto, that the complainant's prior sexual behaviour with the defendant is always relevant and admissible. The admissibility of the complainant's sexual behaviour with the defendant is to be determined under the same procedural provisions as those which apply to the admissibility of such behaviour with third parties. But the court is enabled, in the defendant's interest, to give leave in any case which falls within one or other of the two qualifying subsections where to do otherwise might render a conclusion on any issue falling to be proved in the trial by the prosecution or the defence unsafe.

    73. Of the two qualifying subsections, the only one that is in play in this case is subsection (3). Subsection (5) applies where the purpose of the evidence or question is to rebut or explain evidence adduced by the prosecution. It was not suggested that the respondent's application was made in reliance upon this subsection. I would prefer not to speculate on the circumstances in which the subsection might be invoked. But it is reasonable to think that it was included with a view to the accused's right to a fair trial. The section places no restrictions on the evidence which may be led by the prosecutor. It would plainly be unfair if the prosecutor were, for example, to lead similar fact evidence to support the Crown's case of the kind described in Director of Public Prosecutions v P [1991] 2 AC 447 and the accused were not to be given an opportunity in cross-examination or by adducing evidence to rebut that evidence. Subsection (5) avoids this unfairness.

    74. Subsection (3), which is the critical subsection in this case, comprises three qualifying conditions which are stated in the alternative. It requires careful analysis. First there are the opening words of the subsection. They provide that the subsection applies only if the evidence or question relates to a relevant issue in the case - that is, any issue falling to be proved by the prosecution or the defence at the trial: see section 42(1)(a). The wording of this part of the subsection reflects the general tenor of section 41, which is to protect the complainant against evidence or questions about his or her sexual behaviour other than as part of the event which is the subject matter of the charge. Put the other way round, the evidence or question will cross the threshold of subsection (3) if it relates to an issue which falls to be proved by the prosecutor or by the defence. In this respect at least the subsection has been designed to avoid the unfairness which would result if the accused were to be denied the opportunity to lead evidence or put questions directed to issues that were relevant at the trial. Thus far it does not infringe the defendant's right to make a full answer and defence to the charge.

    75. But the threshold which is set by the opening words of subsection (3) is further qualified by subsection (4), which provides that for the purposes of subsection (3) - but not, it should be noted, for the purposes of the rebuttal provisions in subsection (5) - 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 the main purpose for which it would be adduced or asked would be to impugn the credibility of the complainant as a witness. At first sight this is a serious intrusion on the accused's right to a fair trial. In cases where the accused who is on trial for rape admits that he had sexual intercourse with the complainant on the occasion in question but says that it was with her consent the credibility of the two parties is likely to be the critical issue.

    76. But the definition of "sexual behaviour" in section 42(1)(c) excludes for this purpose anything alleged to have taken place as part of the event which is the subject matter of the charge. It appears that subsection (4) is designed to address one of the two evils which lie at the heart of the mischief which forms the background to the enactment. These are the leading of evidence of sexual behaviour other than that which took place as part of the event which is the subject matter of the charge for the sole or main purpose of showing that, by reason of such sexual behaviour, the complainant (a) was more likely to have consented to the sexual conduct which is at issue in the trial or (b) was an unreliable or less than credible witness. These were described by McLachlin J in R v Seaboyer [1991] 2 SCR 577, 630G-H as the twin myths that may still inform the thinking of many but have no place in a rational and just system of law. As she put it, evidence of such behaviour cannot in itself be regarded as logically probative of either the complainant's credibility or consent. The evil which this subsection addresses in uncompromising terms is the drawing of impermissible inferences as to the complainant's credibility. I shall deal in the next section of this judgment (see paragraph 90 et seq, post) with the question whether by choosing to deal with this issue in this way the section has infringed the accused's Convention right to a fair trial.

    77. Section 41 does not distinguish between evidence or questions about the complainant's sexual behaviour with the accused and the complainant's behaviour with persons other than the accused. The extent to which these two situations ought to be approached differently is left to the determination of the trial judge. There are strong reasons for imposing a narrower prohibition on the complainant's sexual behaviour with third parties. Evidence or questions about sexual behaviour with third parties is likely to be much harder to justify on grounds of relevancy than evidence about sexual behaviour with the defendant. Nevertheless I think that the draftsman was right to avoid laying down an absolute rule on this point. To have done so would have been to risk incompatibility with the accused's right to a fair trial. It is worth noting that the absolute prohibition in the original version of section 276(1) of the Canadian Criminal Code (RSC 1985, c C-46) which was held in R v Seaboyer to be incompatible with the defendant's rights under the Charter of Rights and Freedoms was directed solely to evidence about the sexual activity of the complainant with persons other than the accused. The section, in its original version, placed no restriction on the admissibility of evidence about sexual activity with the accused himself. Much of the discussion in that case is about the relevance or otherwise of the complainant's sexual activity with third parties. But McLachlin J, at p 633F, questioned whether evidence about other sexual activity with the accused should be automatically admissible, and in its revised form section 276(1) of the Code treats both kinds of sexual activity in the same way. In this respect, as counsel for the Secretary of State pointed out (in my view correctly), section 41 follows the Canadian example.

    78. It was suggested during the hearing that questions about sexual behaviour with the accused would be less distressing and humiliating than questions about such behaviour with third parties. But to assent to that proposition would, I think, risk developing rules by reference to stereotypes. Each case is different, and there are sound reasons for thinking that complainants are likely to find evidence and questions about their sexual history distressing or humiliating whatever their subject matter. The only proper test is whether the evidence and questions relate to a relevant issue in the case.

    79. Paragraph (a) of subsection (3) sets out the first qualifying condition. This is that the issue to which the evidence or question relates is not an issue of consent. The justification for enabling leave to be given in such cases was powerfully argued by McLachlin J in R v Seaboyer, at pp 613E-615B. The distinction which she drew was between impermissible generalisations about consent and specific inferences pointing to guilt or innocence. Examples of issues which will fall within this paragraph because the evidence of sexual behaviour is proffered for specific reasons are (a) the defence of honest belief, which McLachlin J defined for the purposes of her examination of the Canadian legislation as resting on the concept - which I consider to be consistent with that described in Director of Public Prosecutions v Morgan [1976] AC 182 - that the accused may honestly but mistakenly (but not necessarily reasonably) have believed that the complainant was consenting to the sexual act; (b) that the complainant was biased against the accused or had a motive to fabricate the evidence; (c) that there is an alternative explanation for the physical conditions on which the Crown relies to establish that intercourse took place; and (c) especially in the case of young complainants, as in the Scottish case of Love v H M Advocate 1999 SCCR 783, that the detail of their account must have come from some other sexual activity before or after the event which provides an explanation for their knowledge of that activity. The fact that leave may be given for evidence and questions directed to these and similar specific issues under this paragraph is an important protection of the accused's right to a fair trial.

    80. Paragraph (b) sets out the second qualifying condition. This is the first of the two qualifying conditions that relate to issues which are issues of consent. To qualify under this condition the evidence or questions must relate to sexual behaviour which 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. The inclusion of the words "or about" give some, but not very much, latitude to the condition imposed by the paragraph. The overall effect is similar to that of the phrase "at or near his own place of work" in section 15(1) of the Trade Union and Labour Relations Act 1974, as substituted by section 16(1) of the Employment Act 1980, which was considered in Rayware Ltd v Transport and General Workers' Union [1989] 1 WLR 675. Nourse LJ said, at p 683C-D, that the word "near" is an expanding word, to be extended so far as to give effect to the intention of the legislature. As May LJ said in the same case, at p 682A-B, the question is in the end one of fact and degree.

    81. As for the intention of the legislature in the case of section 41 of the 1999 Act, extensive reference was made to statements made by the Home Office ministers as reported in Hansard when the legislation was undergoing examination in Parliament. For the reasons which I explained in R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 WLR 15, 48C-E, I consider that the effect of the exception to the rule that resort to Hansard is inadmissible for the purpose of construing an Act which was recognised in Pepper v Hart [1993] AC 593 is that, strictly speaking, this exercise is available for the purpose only of preventing the executive from placing a different meaning on words used in legislation from that which they attributed to those words when promoting the legislation in Parliament. In expressing that view I wish to acknowledge the debt which I owe to my noble and learned friend Lord Steyn's valuable discussion of this point in "Pepper v Hart: A re-examination" (2001) 21 Oxford Journal of Legal Studies 59. But that situation does not arise in this case. In answer to a question which was put to him by my noble and learned friend in the course of the hearing counsel for the Secretary of State said in terms that he was not relying on this material as an aid to construction. So the proper course is to construe the words used according to their ordinary meaning without reference to what the ministers said about them in the course of the debates in Parliament.

    82. But I think that it is legitimate to refer for the purposes of clarification to the notes to this section in the explanatory notes to the Act prepared by the Home Office. I would use it in the same way as I would use the explanatory note attached to a statutory instrument: see Coventry and Solihull Waste Disposal Co Ltd v Russell (Valuation Officer) [1999] 1 WLR 2093, 2103D-G. The relevant note states that it is expected that the phrase "at or about the same time" will generally be interpreted no more widely that 24 hours before or after the offence. The use of the words "or about" avoids the trap of placing a straightjacket around a matter that has to be determined according to the facts and circumstances of each case. It is sufficient for the purposes of this case to say that the previous sexual behaviour of the complainant, including acts of sexual intercourse, about which the respondent wishes to ask questions and lead evidence falls outwith the scope of the phrase "at or about the same time" according to the ordinary meaning of those words. The last act of consensual sexual intercourse which he alleges took place about one week before the alleged rape.

    83. Paragraph (c) sets out the third qualifying condition. It is the second of the two qualifying conditions that relate to issues which are issues of consent. The broad concept to which it is addressed is that of similar fact evidence. As the cases of R v Boardman [1975] AC 421 and Director of Public Prosecutions v P [1991] 2 AC 447 demonstrate, the principle on which the admissibility of similar fact evidence is based is that evidence which falls into this category may so strongly support the truth of the offence charged that it is fair to admit it notwithstanding its prejudicial effect: per Lord Mackay of Clashfern LC in Director of Public Prosecutions v P, at pp 462H-463A. This qualifying condition recognises that the accused may wish to rely on the same principle in order to support his defence of consent. The similarities which it permits are expressed in two alternatives, which are best examined separately. But very precise limits are set on the extent to which the principle may be used in this context. These are indicated by the concluding words of the subsection, which provides that the condition will not be satisfied unless the similarity "cannot reasonably be explained as a coincidence."

    84. The first alternative is that on which the respondent seeks to rely in this case. It relates to the complainant's sexual behaviour on some other occasion which is alleged to have been so similar to any sexual behaviour of the complainant which took place as part of the event charged that it cannot reasonably be explained as a coincidence. In two respects the scope which is given by this provision for the giving of leave to put questions or adduce evidence is quite wide. The alternative is widely enough expressed to cover sexual behaviour with third parties as well as with the accused. And it is widely enough expressed to cover sexual behaviour after as well as before the event charged. To this extent the condition avoids the risk of unfairness to the accused. But the requirement that the similarity cannot reasonably be explained as a coincidence imposes a precisely expressed restriction which is significantly tighter than that which the Crown must satisfy under the rule established in Director of Public Prosecutions v P.

    85. On the limited version of the facts of this case which has so far been made available, no similarity is alleged as to the complainant's sexual behaviour with the respondent on previous occasions to any behaviour on her part which took place as part of the event charged except for the bare fact that it included occasions when she is alleged to have had consensual sexual intercourse with him. Mr Rook did not seek to suggest to the Court of Appeal that there was such a similarity as would enable evidence to be adduced or questions asked under section 41(3)(c): see para 19 of the Court of Appeal's judgment. No attempt appears to have been made to investigate the facts to the level of detail that section 41(3)(c) demands.

    86. For this reason the respondent's allegations seem to me to invite the criticism that they are based on one of the two evils which lie at the heart of the mischief which the section seeks to address: the myth that simply because the complainant consented to sexual intercourse on previous occasions she was more likely to have consented to sexual intercourse on this occasion. The scope of the requirement that the similarity cannot reasonably be explained as a coincidence is therefore not, as matters stand, the critical issue in this case. In my opinion the application fails on the ground that no similarity other than the bare fact of alleged previous consensual intercourse with the respondent has been demonstrated.

    87. On the other hand the question whether the requirement that any similarity that may be alleged cannot reasonably be explained as a coincidence may yet arise in this case, if the respondent is given an opportunity to explain the basis for his application in greater detail. So I would add these comments. The test which this phrase lays down appears to have been taken from R v Boardman [1975] AC 421 and in particular from Lord Salmon's observations where he said, at p 462C-D:

    88. It is not easy to see how that dictum, which is taken from the context of criminal sexual conduct, can be applied to conduct on which the accused wishes to rely as a defence to the charge which has been laid against him. I do not think that it is helpful to speculate as to what kinds of sexual conduct will satisfy this test. Each case will have to be approached on its own facts. But on any view it has been deliberately framed in such a way as to indicate, according to the ordinary meaning of the words used, that it will not be easy to satisfy. It has been modified slightly from the strict test which Lord Salmon described because the phrase "cannot be explained as a coincidence" is qualified by the word "reasonably". Nevertheless it leans strongly in favour of the protection of the complainant. I shall deal in the next section of this judgment (see paragraph 90 et seq, post) with the question whether it leans too far.

    89. The second alternative in paragraph (c) relates to the complainant's sexual behaviour on some other occasion which is alleged to be so similar to any other sexual behaviour of the complaint which took place "at or about the same time" as the event charged that it cannot reasonably be explained as a coincidence. The scope to be given to this phrase, according to the ordinary meaning of the words used, is the same as that to be given to the same phrase in paragraph (b). As in the case of the first alternative, the sexual behaviour is not limited to sexual behaviour with the accused before the event charged. It can include within its scope sexual behaviour with third parties as well as sexual behaviour with the accused or with third parties which took place after the event. But, as in the case of the first alternative, the scope to be given to this alternative is qualified by the requirement that the similarity cannot reasonably be explained as a coincidence.

The Convention right to a fair trial

    90. The right of an accused under article 6(1) of the Convention is to a fair trial. As I observed in Brown v Stott [2001] 2 WLR 817, 851C, this is a fundamental and absolute right, to which the rights listed in articles 6(2) and 6(3) are supplementary. The rights listed in article 6(3) include the accused's right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him: see paragraph (d). There is no doubt that Parliament, by placing restrictions on the questions that may be asked and the evidence that may be adduced by or on behalf of the accused was entering upon a very sensitive area.

    91. But article 6 does not give the accused an absolute and unqualified right to put whatever questions he chooses to the witnesses. As this is not one of the rights which are set out in absolute terms in the article it is open, in principle, to modification or restriction so long as this is not incompatible with the absolute right to a fair trial in article 6(1). The test of compatibility which is to be applied where it is contended that those rights which are not absolute should be restricted or modified will not be satisfied if the modification or limitation "does not pursue a legitimate aim and if there is not reasonable proportionality between the means employed and the aim sought to be achieved": Ashingdane v United Kingdom (1985) 7 EHRR 528, 547, para 57. A fair balance must be struck "between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights": Sporrong and Lönnroth v Sweden (1982) 5 EHRR 35, 52, para 69. The general principles described in the Ashingdane case were restated in Lithgow v United Kingdom (1986) 8 EHRR 329, 393, para 194 and again in Fayed v United Kingdom (1994) 18 EHRR 393, 429, para 65; see also Brown v Stott [2001] 2 WLR 817, 851. The question whether a legitimate aim is being pursued enables account to be taken of the public interest in the rule of law. The principle of proportionality directs attention to the question whether a fair balance has been struck between the general interest of the community and the protection of the individual.

    92. In my opinion the placing of restrictions on evidence or questions about the sexual behaviour of complainants in proceedings for sexual offences serves a legitimate aim. The prevalence of sexual offences, especially those involving rape, which are not reported to the prosecuting authorities indicates a marked reluctance on the part of complainants to submit to the process of giving evidence at any trial. The rule of law requires that those who commit criminal acts should be brought to justice. Its enforcement is impaired if the system which the law provides for bringing such cases to trial does not protect the essential witnesses from unnecessary humiliation or distress.

    93. It seems to me that the critical question, so far as the accused's right to a fair trial is concerned, is that of proportionality. The points of particular concern which I have identified in my analysis of section 41 are (a) the exclusion by section 41(4) of evidence and questions for the purpose of impugning the credibility of the complainant as a witness (see paragraph 76, ante) and (b) the requirement in section 41(3) that any similarity cannot reasonably be explained as a coincidence (see paragraph 83, ante). The impact of these provisions on the right to a fair trial is highlighted by the fact that they are binding on the trial judge. They are mandatory. He has no discretion to admit the evidence or to allow the questioning if he thinks that it is in the interests of justice to do so.

    94. The question is whether these provisions have achieved a fair balance. This will be achieved if they do not go beyond what is necessary to accomplish their objective. That is the essence, in this context, of the principle of proportionality. Furthermore, to ask oneself whether they are fair to the defendant is to address one side of the balance only. On the other side there is the public interest in the rule of law. The law fails in its purpose if those who commit sexual offences are not brought to trial because the protection which it provides against unnecessary distress and humiliation of witnesses is inadequate. So too if evidence or questions are permitted at the trial which lie so close to the margin between what is relevant and permissible and what is irrelevant and impermissible as to risk deflecting juries from the true issues in the case. The high rate of acquittals in rape cases before section 41 was introduced suggests that juries are not immune from temptation, and that they are quite likely to draw inferences from evidence about a complainant's sexual behaviour on occasions other than that of the alleged rape which the law now recognises they should not draw.

    95. A prohibition of evidence and questions about the complainant's sexual behaviour on other occasions whose purpose, or main purpose, is to elicit material to impugn the credibility of the complainant as a witness seems to me to strike the correct balance. If the sole purpose is to impugn credibility, the defendant has no rights in the matter at all. The complainant's sexual behaviour on other occasions is irrelevant. No inferences can properly be drawn about her credibility from the mere fact that she has engaged in sexual behaviour on other occasions. I would hold that the words "or main purpose" which qualify the words "the purpose" in section 41(4) do not widen the prohibition to an extent which, when regard is had to the public interest, is unfair.

    96. The effect of the requirement in section 41(3)(c) that any similarity cannot reasonably be explained as a coincidence is more difficult to assess. It seems to me that the assessment might best be approached in stages by asking these questions: (1) does a proportionate response to the legitimate aim entitle the legislature, in principle, to restrict the extent to which evidence may be adduced and questions asked about the complainant's other sexual behaviour where the issue is one of consent? (2) if so, are the restrictions in section 41(3)(c) so unfair that it can be said that no defendant who wishes to adduce such evidence or ask such questions can ever have a fair trial because its effect is to exclude relevant evidence whose probative value is not clearly outweighed by the prejudice which it may cause? (3) if not, has it been shown that it will cause such unfairness in this case?

    97. It is not necessary to dwell on the first or on the last of these three questions. Some limit must be placed on the extent to which evidence may be adduced and questions asked if the legitimate aim is to be achieved. That point is not in dispute. As far as this case is concerned, I have already mentioned the fact that no attempt appears yet to have been made to investigate the facts to the level of detail that section 41(3)(c) demands. It is not yet possible to say that there is any relevant evidence about similar sexual behaviour by the complainant which would be excluded by the restrictions. So I do not think that it can yet be said that, if the restrictions are not caught by the second question, they are so unfair in this case as not to be proportionate.

    98. There remains the second question. I agree with Mr Pannick QC for the Home Secretary that if the restrictions are likely to cause unfairness in isolated cases only, of which this is not one, the better course is to deal with them later and one by one as they arise. The point of the second question is that if it is answered in the affirmative the incompatibility which will result will be capable of being invoked by every defendant whose defence is directed to the issue of consent. That, in effect, is the position which the respondent adopts. He says that there is no point in attempting the exercise required by section 41(3)(c) because the restrictions are so tightly drawn that there is no reasonable prospect of overcoming them.

    99. It is plain that the question is in the end one of balance. Has the balance between the protection of the complainant and the accused's right to a fair trial been struck in the right place? As I indicated earlier in this judgment (see paragraph 58, ante), I think that, if any doubt remains on this matter, it raises the further question whether Parliament acted within its discretionary area of judgment when it was choosing the point of balance indicated by section 41. The area is one where Parliament was better equipped than the judges are to decide where the balance lay. The judges are well able to assess the extent to which the restrictions will inhibit questioning or the leading of evidence. But it seems to me that in this highly sensitive and carefully researched field an assessment of the prejudice to the wider interests of the community if the restrictions were not to take that form was more appropriate for Parliament. An important factor for Parliament to consider was the extent to which restrictions were needed in order to restore and maintain public confidence.

    100. Some assistance in finding an answer to this question may be gained by looking at the solutions that have commended themselves to other jurisdictions. Rape-shield legislation in the United States has been classified into four different models: H Galvin "Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade" (1986) 70 Minn L Rev 763; see also the helpful summary in Neil Kibble's paper, at pp 25-26. The Michigan model is the one followed most widely in the United States. It has been adopted in New South Wales (section 409B(3) of the Crimes Act 1900) and was adopted by Canada until it was held in R v Seaboyer [1991] 2 SCR 577 to be unconstitutional. It imposes a general prohibition on the introduction of evidence of prior sexual behaviour, subject to certain specific exceptions but permits evidence of prior sexual behaviour between the complainant and the defendant. The New Jersey model leaves the matter almost entirely to the discretion of the trial judge, but it provides for the question whether to admit the evidence to be determined at a pre-trial hearing. The Federal model follows the Michigan model to the extent that it imposes a general prohibition on the introduction of prior sexual behaviour with specific exceptions one of which relates to the complainant's behaviour with the accused, but it gives the trial judge a general residual discretion to admit the evidence if it would be contrary to the interests of justice to exclude it or to do so would violate the defendant's constitutional rights. A similar model is in force in Western Australia (sections 36B, 36BA and 36BC of the Evidence Act 1906). The California model prohibits evidence of prior sexual behaviour to prove consent unless the evidence is of prior sexual conduct between the complainant and the defendant, while evidence with respect to credibility is admissible at the discretion of the court.

    101. To these four models there now fall to be added two more. The first of these is the revised Canadian model. Section 276 of the Canadian Criminal Code (RSC 1985, c C-46) was redrafted following the decision in R v Seaboyer to give statutory effect to the guidelines which the Supreme Court of Canada laid down in that case for the reception and use of sexual conduct evidence. It starts by providing that evidence of other sexual activity, whether with the accused or with any other person 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 or is less worthy of belief. In R v Darrach 191 DLR (4th) 539, 560 the Supreme Court of Canada held that this is an evidentiary rule that excludes such evidence because it is irrelevant. There are then three exceptions to that rule which allow the evidence to be admitted if the judge determines that the evidence is of specific instances of sexual activity, that it is relevant to an issue at the trial and that it has significant probative value that is not significantly outweighed by the danger of prejudice to the proper administration of justice. Guidelines are included to assist the judge in determining whether the evidence is admissible. In R v Darrach the court held that the procedure created by the revised section 276, taken as a whole, was consistent with the principles of fundamental justice and protected the defendant's constitutional rights.

    102. Lastly there is the Scottish model. It was first enacted by section 36 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and is now to be found in sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995. Questioning designed to show that the complainer is not of good character in sexual matters, that she is a prostitute or that she has at any time engaged with any person in sexual behaviour not forming part of the subject matter of the charge is excluded by section 274. But section 275 provides that such questioning or evidence may be allowed where the court is satisfied that it is designed to explain or rebut other evidence, is questioning or evidence as to sexual behaviour which took place on the same occasion as the sexual behaviour forming the subject matter of the charge or is relevant to the defence of incrimination (that is, that the crime was committed by some other named individual) or that it would be contrary to the interests of justice to exclude it. A study by Dr B Brown "Sexual History and Sexual Character Evidence in Scottish Sexual Offence Trials" (University of Edinburgh, 1992) concluded that, while there were a number of positive features in this legislation, it fell short of achieving its aim in practice. It was suggested that, while there were other possibilities, a more certain remedy would be to modify the discretionary character of the exceptions and to identify instead specific types of circumstances in which sexual history or character evidence would be relevant to key issues in the trial.

    103. It is reasonably clear from this brief review that there is no one single answer to the problem as to how best to serve the legitimate aim. There are choices to be made. There are indications from the wording and structure of section 41 that close attention was paid to the more recent Canadian and Scottish models. But in significant ways it has departed from both of them. The element of judicial discretion has been reduced to the minimum. There are risks involved in that choice. It has deprived the judge of the opportunity, in the last resort, of preventing unfairness to the defendant in circumstances where to do this would not significantly prejudice the proper administration of justice.

    104. But two important factors seem to me to indicate that prima facie the solution that was chosen was a proportionate one. The first is the need to restore and maintain public confidence in the system for the protection of vulnerable witnesses. Systems which relied on the exercise of a discretion by the trial judge have been called into question. Doubts have been raised as to whether they have achieved their object. I think that it was within the discretionary area of judgment for Parliament to decide not to follow these systems. The second is to be found in a detailed reading of the section as a whole. As I have tried to show in my analysis of the various subsections, it contains important provisions which preserve the defendant's right to ask questions about and adduce evidence of other sexual behaviour by the complainant where this is clearly relevant. While section 41(3) imposes very considerable restrictions, it needs to be seen in its context. I would hold that the required level of unfairness to show that in every case where previous sexual behaviour between the complainant and the accused is alleged the solution adopted is not proportionate has not been demonstrated.

Conclusions

    105. I emphasise the words "every case", because I believe that it would only be if there was a material risk of incompatibility with the article 6 Convention right in all such cases that it would be appropriate to lay down a rule of general application as to how, applying section 3 of the Human Rights Act 1998, section 41(3) ought to be read in a way that is compatible with the Convention right or, if that were not possible, to make a declaration of general incompatibility. I do not accept that there is such a risk. This is because I do not regard the mere fact that the complainant had consensual sexual intercourse with the accused on previous occasions as relevant to the issue whether she consented to intercourse on the occasion of the alleged rape.

    106. For these reasons I consider that it has not been shown that, if the ordinary principles of statutory construction are applied to them, the provisions of section 41 which are relevant to the respondent's case are incompatible with his Convention right to a fair trial. I would hold that the question whether they are incompatible cannot be finally determined at this stage, as no attempt has been made to investigate the facts to the required level of detail to show that section 41 has made excessive inroads into the Convention right. It seems to me that it is neither necessary nor appropriate at this stage to resort to the interpretative obligation which is described in section 3 of the Human Rights Act in order to modify, alter or supplement the words used by Parliament. I think that it would only be appropriate to resort to surgery of that kind in this case if the words used by Parliament were unable, when they were given their ordinary meaning, to stand up to the test of compatibility. But that cannot, in my view be said of the allegations which the respondent makes as to the complainant's sexual behaviour with him prior to the incident of the alleged rape. All he appears to be relying upon at present is the mere fact that on various occasions during the previous three weeks she had had consensual sexual intercourse with him in his flat. As I have said, I consider that this fact alone - and nothing else is alleged about it - is irrelevant to his defence of consent. So I would hold that the exclusion of evidence and questions which relate to it in regard to that defence (but not that of honest belief ) is not incompatible with his right to a fair trial.

    107. This does not mean that the q