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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Evans v R.  EWCA Crim 452 (21 April 2016)
Cite as:  4 WLR 169,  EWCA Crim 452
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REFERENCE BY THE CRIMINAL CASE REVIEW COMMISSION
UNDER SECTION 9 OF THE CRIMINAL APPEAL ACT 1995.
Strand, London, WC2A 2LL
B e f o r e :
Vice President of the Court of Appeal Criminal Division.
MR JUSTICE FLAUX
SIR DAVID MADDISON
| Chedwyn Evans
|- and -
Ms Eleanor Laws QC and Mr John Philpotts for the Respondent
Hearing dates: Tuesday 22nd March and Wednesday 23rd March 2016
Crown Copyright ©
Lady Justice Hallett, Vice President of the Court of Appeal Criminal Division:
"(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
no evidence may be adduced, and
no question may be asked in cross-examination,
by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—
(a) that subsection (3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either—
(a) that issue is not an issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—
to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
that the similarity cannot reasonably be explained as a coincidence.
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5) This subsection applies if the evidence or question-
(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or instances) alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate)."
(i) Lord Slynn at paragraph 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."
(ii) Lord Steyn at paras 45 and 46:
"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."
"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 X 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."
"It is only a similarity that is required, not an identity. …. Further the similarity must be such as cannot reasonably be explained as a coincidence. To my mind that does not necessitate that the similarity has to be in some rare or bizarre conduct. So long as the particular factor goes beyond the realm of what could reasonably be explained as a coincidence, it should suffice. Something about the sexual behaviour of the complainant on each of the occasions, such as something said or done by him or her which is not so unremarkable as to be reasonably explained as a coincidence has to be found."
"It is now accepted that the evidence relating to the previous sexual intercourse within the climbing frame was similar within the wording of section 41(3) (c) (i). As it would seem to us, it is clearly arguable that the adoption of the same respective positions on that occasion as on the occasion the subject of the trial would also be similar within section 41(3)(c)(i). Indeed it is arguable that the consenting oral sex should be admissible, if not because it is similar, at least, in order to avoid there being an unfair trial."
Whether the evidence is capable of belief
Whether there is a reasonable explanation for the failure to adduce the evidence at trial
Whether the evidence would have been admissible and may afford a ground for allowing the appeal