The Section 41 Approach In Sexual Offence Trials Law Essay

Historically, the prejudicial effect of rape myths and sexual history evidence has been problematic for the courts in sexual offence trials. In 1999, Parliament enacted s.41 of the Youth Justice and Criminal Evidence Act to place stringent restrictions on sexual history evidence. However, these provisions have caused some difficulties for the courts.

While the landmark case of A(2) resolved some of the issues, it will be put that the law remains vexed and, once again, in dire need of reform. A new approach is required which does not exclude evidence from consideration by the jury. Instead, rape myths need to be attacked directly, so they can be eradicated, and their impact neutralized.

This discourse will be prefaced by a discussion of the events leading up the 1999 Act, followed by a cursory overview of the approach taken by s.41 in order to highlight some of the primary problems with the legislation. Subsequently, the House of Lords decision in A(2) will be scrutinized, followed by consideration of some suggestions for reforming the law.

Traditionally, the investigation and prosecution of rape and other sexual offences has been rife with difficulties, especially in the area of evidential requirements. Aggressive questioning of female complainants about personal sexual matters was commonplace, and sexual history evidence was considered relevant to consent and credibility.

Over time, myths and stereotypes developed which exerted prejudicial effects on the fairness of trials. In R v Riley, evidence of previous voluntary sexual relations with the accused was admissible in order to assert that it was more likely that the complainant consented to the incident in question. [] 

In 1975, the Heilbron Committee considered legislative reforms, examining the impact of sexual history evidence. Their report recommended that it should only be admissible in very limited circumstances, that there should be some limited judicial discretion along with an inclusionary rule based on ‘striking similarity’.

Unfortunately, when drafting s.2 of the Sexual Offences Act 1976, these proposals were largely ignored. The complainant’s sexual behaviour with someone other than the defendant should only be referred to when it would be unfair to exclude it, based on the judge’s discretion. [] 

However, the practical application by the courts was too permissive with too much judicial discretion, resulting in sexual history evidence being admitted too freely. [] 

Amidst growing disquiet, in 1998 the Home Office scrutinized the practical application and the failures of the 1976 Act. The White Paper ‘Speaking Up for Justice’ exposed numerous inherent weaknesses which necessitated reform. [] This report was criticized by Diane Birch and Neil Kibble for contributing to the shortcomings of Parliament’s response in 1999.

The YJCEA debates on the draft bill reflected a lack of consensus on the ideal approach to rape shield legislation, including prevalent concerns about over-restrictiveness and the dangers of excluding relevant evidence. [] The wider jurisprudence was surveyed, including approaches in Australia, Canada, and Michigan. The landmark Canadian case R v Seaboyer [] , where McLachlin J. coined the term ‘twin myths’, challenged the provisions of s.276 of the Criminal Code composed of a rule of exclusion with three exceptions. [] Resultantly, the Canadian Supreme Court held that s.276 unconstitutionally violated the right to a fair trial. The impact of these developments played a central role in the YJCEA debates in the UK, as “…they were cited as evidence that legislative straitjackets had been attempted and failed.” [] 

Parliament’s response was s.41 YJCEA 1999, which engendered a more restrictive and structured approach to attacking the ‘twin myths’ that sexual experience may indicate a propensity to consent and a lack of veracity. [] The aim of the legislation was to strike a balance between protecting claimants from the prejudice of sexual history evidence while securing the defendant’s right to a fair trial.

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The blanket rule of exclusion under 41(1) restricts evidence or questions about any sexual behaviour without leave of the court, which will only be granted where both conditions of the two-part test are satisfied; under s.41(2)(a) where either ss.(3) or (5) applies, and the unsafe verdict test, under s.41(2)(b).

Any questions or evidence pertaining to the actual incident can be adduced, such as questions about what the complainant said or did before or during the incident, including humiliating questions. Also, anything not about sexual behaviour, and not including sexual history evidence can be adduced. The rape shield legislation targets other sexual behaviour outside the charge, legitimately seeking to exclude sexual history evidence that is not related to the incident.

There is a closed list of four narrow gateways (or exceptions) within which evidence may be regarded as critical. Notably, within a matter of days of coming into effect, the legislation warranted a challenge to the House of Lords to consider whether they were broad enough to prevent injustice. [] 

The non-consent gateway may admit evidence pursuant to s.41(3)(a), if it is not an issue of consent, such as mistaken identity [] , honest belief in consent, motive to fabricate, or alternative explanation. The consent gateway, may admit evidence about an issue of consent, which is about sexual behaviour which took place at or about the same time as the subject matter of the charge (res gestae) [] , or it is so similar to behaviour that took place as part of the incident that it cannot be explained as coincidence (similar fact).

The fourth gateway applies only when the prosecution has adduced evidence about the sexual behaviour of the complainant, whereby the defence can only go as far as is necessary to enable that evidence to be rebutted or explained. [] 

Upon passing through a gateway and surmounting the two-part test, two further requirements arise. Under s.41(4), questions or evidence intended to impugn the credibility of the complainant are restricted. As well, under s.41(6) evidence or questions must relate to a specific instance of sexual behavior. [] 

These provisions have raised numerous fundamental concerns. Unlike other jurisdictions, the leave requirement does not apply to the prosecution, making s.41 a one-sided rule of exclusion that only applies to the defence. [] Lord Hope recognized the dangerous threat this posed to the ‘equality of arms’ principle enshrined in Article 6(3)(d) of the Convention. [] For instance, under s.41, the prosecution would be permitted to adduce evidence of the complainant’s virginity to illustrate that it was unlikely that she consented to the alleged acts. On the other hand, the defence is prevented from adducing contrary evidence that the she has experience with multiple partners to show that she is more likely to have consented. Allowing one but not the other seems imbalanced, and “raises the broader question whether the true rationale for s.41 is on excluding irrelevant evidence or protecting against humiliation of complainants in cross-examination”. [] 

The vague definition of sexual behaviour under s.42(1)(c) has resulted in some difficulties, [] though it is considered controversially wider now, since it covers evidence of previous or subsequent sexual behaviour with the accused and with third parties. As will be seen, this was a fair trial flashpoint in A(2). [] Professor Birch has argued that equating the accused with third parties creates the danger of redefining the defendant as a stranger, thereby giving potency to the old myth that ‘real rape is committed by strangers’. [] For example, relevant evidence of a previous romantic relationship between the defendant and the accused which included sexual relations a few days before the incident in question may be excluded unless it can pass through the narrowly drawn ‘res gestae’ gateway. If it cannot (and does not satisfy the unsafe test), Thre is no discretion to include it even though it may be highly relevant to the defence case.

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The restrictive ‘gateways’ approach has created integral concerns regarding the exclusion of relevant evidence, where its prejudicial effects compromises the fairness of trials. Combined with restrictions on judicial discretion, the shortcomings of using only three fixed exceptions to try and predict every eventuality is exacerbated further. Neil Kibble, in his 2004 report, stated that “other jurisdictions like Canada and Australia have already rejected this pigeon-holing approach on the ground that even if judges get it wrong you can’t address the problem effectively by eliminating their discretion”. [] 

The shortcomings of s.41 reached critical mass in the landmark case of A(No.2) which involved a rape trial, where the accused alleged an ongoing sexual relationship with the complainant three weeks prior to the incident in question, with the last occasion being one week prior. The trial judge had sought to admit evidence of the previous relationship as relevant to consent, but was unable to do so through one of the gateways. Thus, following the decision of the Court of Appeal, [] the House of Lords intervened, to examine whether excluding such evidence under s.41 would contravene the defendant’s right to a fair trial pursuant to Article 6(3)(d) ECHR.

One of the touchstone issues identified included the extent to which the defence could refer to matters outside the central facts in order to provide the court with fundamental evidence, the absence of which may result in an unjust verdict. Lord Hutton stated that “the right of a defendant to call relevant evidence, where the absence of such evidence may give rise to an unjust conviction, is an absolute right which cannot be qualified by considerations of public interest, no matter how well-founded that public interest may be”. [] 

Their Lordships contemplated whether a sexual relationship between the accused and the complainant was relevant to the issue of consent such that to exclude it under s.41 would contravene the defendant’s right to a fair trial.

Reaching a decision required the importation of a residual discretion to decide whether leave should be granted to the defence to adduce evidence of the relationship if it was so central to the issue of consent, that to exclude it would threaten the Article 6 Right to a fair trial. This was achieved by employing s.3 HRA 1998 by reading and giving effect to the similarity exception within s.41(3)(c) in a way that was compatible with Convention rights.

Their Lordships qualified their decision by stating that while the aims of the provisions were legitimate, the approach raised questions about proportionality regarding sexual behaviour with the accused. Thus, it was agreed that such evidence could be sufficiently relevant to necessitate its admission in the interests of fairness.

Thus, s.41 was rescued from the clutches of repeal, some residual discretion for trial judges was restored, and the gateways relaxed in the interests of fairness. In some respects, the law seemed come back around full circle to where it was before the 1999 Act, based on fairness tempered with judicial discretion. [] 

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However, along with this flexibility came a degree of uncertainty, as it created the danger that the rationale could be broadly applied in any case where the judge adopted the view that fairness under Article 6 may be threatened. Cases such as R v Rooney, [] R v Martin, [] R v R (2), [] and R v White [] indicate how the courts have struggled in the aftermath of A(2).

In 2006, a Government White Paper looked at the effectiveness of s.41, whereby National statistical data revealed that s.41 had little or no effect on attrition, while rape conviction rates continued to fall. The report also found that the Crown Court Rules regarding s.41 were frequently ignored or avoided, and recommended that reforms were necessary in order to increase the effectiveness of the legislation. [] 

A way needs to be found to bring rape myths out in the open so they can be eradicated, and their impact neutralized. Diane Birch stated that “if juries can only be trusted to adjudicate on cases of rape within relationships by being kept in the dark about the relationship, there is something fundamentally wrong with jury trial”. [] 

The law should equip judges and juries with the tools needed to effectively attack rape myths in order to mitigate the prejudice of sexual history evidence, like other areas of law such as bad character have done, with enhanced judicial training and jury directions. Interestingly, Vera Baird, QC, the Solicitor-General, recently announced that jury directions are being developed that would instruct juries to ignore rape myths in an effort to increase conviction rates in the UK (amongst the lowest in Europe). [] 

Consideration should be given to amending the current gateways to widen the scope of factors considered, and additional gateways should be added such as implementing a ‘safety-valve’ type of residual discretion in order to admit evidence falling outside of the exceptions, similar to the approach taken by s.276 of Canadian Criminal Code after the ruling in R v Seaboyer. [] This should reflect a recognition of the value of contextual factors as explanatory evidence, in line with Lord Hutton’s ‘mindset argument’ approach in A(2).

The culmination of what has been discussed thus far establishes that the aims of s.41 YJCEA 1999 are legitimate, as rape myths have threatened the fairness of trials for centuries. However, it has been argued that the approach taken by s.41 does not strike an effective balance between protecting the complainant from the ravages of sexual history evidence versus securing the defendant’s right to a fair trial under the Convention. The restrictive gateway’s are incapable of foreseeing every eventuality, and thus create the potential for relevant evidence to be excluded from consideration by the jury.

The House of Lords decision in A(2) addressed this issue, and was required to import in some residual judicial discretion in order to resolve the dilemma and prevent repeal of the Act. However, this decision created some uncertainty, which has left the law unresolved and in a muddle.

The suggestions for reform center around one underlying theme: the law needs to move towards enabling judges and juries to squarely attack the rape myths, and be able to handle sexual history evidence with the sensitivity required so as to mitigate prejudice while not risking the fairness of trials. A fine balance must be struck between the flexibility of some limited judicial discretion and the certainty provided by the legislative restrictions of s.41 in order for the law to operate effectively. The former must not come at the expense of the latter.

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