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VULNERABLE WITNESSES Restrictions on the cross-examination of sexual complainants on their previous sexual histories Fairness and relevance of cross-examining sexual offence victims about sexual history came to be doubted over time.
? Youth Justice and Criminal Evidence Act 1999, s.41 - toughened up on cross-examination rules. o Some say the pendulum has swung against defence now. Seaboyer case = 2 myths (1) past sexual conduct more likely to be presently consenting + (2) promiscuity = incredibility. S.41(1) YJCEA 1999 "If at trial a person is charged with a sexual offence, then, except with the leave of the court(a) no evidence may be adduced, and (b)no question may be asked in cross-examination, by or on behalf f any accused at the trial, about any sexual behaviour of the complainant." s.41(4) outlines when leave of the court should not be given: "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" C and B:
? Accused were charged with sexual offences against their 7 year old twins. Wanted to bring in evidence of them making complaints against other two parties as well as the parents.
? Mance J - this fell into s.41 and leave was needed before it could be introduced. It related to the sexual experiences and history of the complainants.
"Sexual Behaviour" Defined in s.42(1)(c): 'any sexual behaviour or other sexual experience, whether or not involving any accused or other person'. Wide prohibition:
? B: Defendant argued in response to homosexual rape charge that it was casual and consensual. Could not bring in evidence that the victim was a practicing homosexual who often took part in such intercourse. o Previous consent is not evidence of present consent.
? Ben-Rejab: BR convicted of rape and wanted to ask complainant about messages she had posted on a social networking site referring to her 'sex style' and how good she was in bed. o CA said this related to her 'sexual behaviour' as defined in s.42(1) (c). o Pitchford LJ - does not need to involve another person, it can embrace a wide range of things.
Matters unconnected with 'sexual behaviour' RT: MH:Man charged with raping niece held to have been wrongly refused to ask why she had not mentioned the assault earlier, when other sexual allegations were being investigated. The court said the question wasn't about sexual behaviour but why her accusation was made later. Emphasised distinction between things about sexual behaviour and questions related to past lies. If there is a danger of the complainant adverting to sexual behaviour in answers, leave must be sought. If allegations of lying are made, the defence must have a proper evidential basis for asserting the statements were made and that they were untrue.
? In cases in which false complaints are invoked as evidence by the defence, Moore-Bick LJ in E (Stephen) said that there must be some material leading to the conclusion that the previous complaint was false in order to render that questioning legitimate.
Evidence of 'sexual behaviour' impugning the complainant's credibility s.41(4) outlatws evidence or questions concerning a complainant's sexual behaviour if it seems as though it is being used to impugn the credibility of the complainant. Situation in which it was allowed: Martin
? M denied having raped V on a Wednesday. At trial refused leave to ask whether she had pestered him for sex and performed a sex act upon him on the previous Monday. He said those advances were motive for false allegation about the Wednesday.
Crane J held that the effect of the cross-exam would be to impugn the credibility of the victim, but that the questions should have been allowed because they lay the basis for M explaining the falsity of the allegation.
Conditions of Admissibility s.43 - applications for leave heard in private Two conditions for leave to be granted: (1)If the judge is 'satisfied...that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or...the court on any relevant issue in the case' (s.41(2)(b)), a. This must be satisfied in every case. (2)One of the four situations fulfilled. Four situations:
1. Relevant issue in the case is 'not one of consent' (s.41(3)(a)).
? Issue of consent defined in s.42(1)(b) - cases in which the question is whether the complainant in fact consented.
? This means you can contest the AR or say you reasonably believed in consent in order to avoid the exclusion.
2. Relevant issue 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' (s.41(3)(b))
? For when the conduct at the time of events might be relevant - e.g. indulged in sexual activity with D earlier in the evening
? Must be directly relevant to the issue of consent - Stephenson: not under this when it was just evidence of her kissing other men - no bearing on whether she would with D.
? Y - doesn't apply to things weeks/days/months before alleged rape.
3. Relevant issue is 'of consent' and the sexual behaviour to which the evidence relates is alleged to have been so similar: (i) to any sexual behaviour of the complainant which took place as part of the event which is the subject matter of the charge of the accused or (ii) to any other sexual behaviour of the complainant which took place at or about the same time as that event. And that the similarity cannot be reasonably explained as a coincidence. (s.41(3)(c)) S: W alleged H raped her after they agreed to separate. He wanted to introduce evidence that they had sex the day before the alleged rape under s.41(3)(c). This was refused by the trial judge and H appealed.
-Held, Appeal dismissed - in some circumstances s.41(3)(c) should be read down in accordance with s3 HRA where injustice will be done with strict reading. But here, mere fact of sexual intercourse was not admissible. o No logical connection between last act of sexual intercourse which was consensual and the event of the alleged rape which could assist the jury in deciding whether consent existed. o Here, the past sexual conduct was 9 days before. Kibble: o Agrees with outcome that, where jury aware that C and D had recent sexual relationship, Q of when the last act of relations was wasn't relevant to the jurys consideration of consent. o Questions whether relationship evidence rests upon relevance to consent or it being important background evidence - Kibble interviewed 77 judges and found no consensus. o 'complainant's sexual history' in these cases actually encompasses defendant's and Kibble says we should be reluctant from preventing D from giving their account of events and their context. o Pennington and Hastie - research showing that story construction is central to jury decisions. This means narrative should be seen as v important. o Sexual history evidence in abusive relationship - Boyle says the evidence of previous sexual relationship can counter assumptions that C would not consent to sex after being assaulted.
? Though note possibility of trial becoming examination of relationship rather than the particular incident.
Wayne: Teacher got drunk and took two men home, one of whom, W, was homeless. She had encountered them on the street. W charged with rape and applied for leave to ask V about her previous psychiatric history, which showed that in the past she engaged in casual, risky sex with strangers.
- Trial judge said there was no 'similarity' within the meaning of s.41(3)(c).
- Thomas LJ in the CA agreed - to allow it would be tantamount to saying that the complainant was a person who engaged in casual sex in the past so would be likely to agree to it with W. Read A(no2)
4. The prosecution has adduced evidence relating to the complainant's previous sexual history (s.41(5) Hamadi: this only refers to evidence placed before jury in course of prosecution's evidence in chief and in cross-examination. It does not extend to evidence from prosecution witnesses by the defence's cross-examination. The exception only extends as far as necessary to allow the defence to rebut or explain evidence adduced by the prosecution (s.41(5)). Requirement for all 4 all outlined circumstances in s.41(6):
? Requirement that "The evidence or question must relate to a specific instance...of sexual behaviour on the party of the complainant".
? White: W held to have been rightly prevented from asking victim whether, at the time of the alleged rape, she was not still working as a prostitute. o Laws LJ: there must be something about the specific instance of sexual conduct which has potential probative force.
Human Rights Laws 1999 Act only very occasionally will allow D to make reference ot the sexual history of the complainant. 'Rape shield' laws are common in other jurisdictions too. The human rights implications were considered in A (No.2) by the HL:
? Q was: May a sexual relationship between a D and C be relevant to the issue of consent so as to render its exclusion under s.41 of the 1999 Act a contravention of the defendant's right of fair trial?
? Lord Steyn explained the main issue to be the fact that s.41 imposes identical exclusionary provisions in respect of C's sexual experience with the accused as with other man, "posing an acute problem of proportionality".
? Lord Hutton pointed out that the fact that there has been a close and affectionate relationship between C and D will probably be relevant as evidence of her specific mindset towards him. Facts of A (No.2)
- Accused claimed to have had consensual intercourse with the complainant on a number of occasions from the 3 weeks before the offence charged. Judgment:
- HL emphasised that it was for the trial judge in each case to determine whether evidence was sufficiently probative to justify admission.
- Once relevance was acknowledged, it had to be decided if the evidnce could be admitted applying s.41. The House decided it was inadmissible. S.41(3)(c) on 'similar behaviour' could not cover this situation.
- The provision does not adversely affect the fairness of 'every case' or make excessive inroads into the guarantee of fair trial so s.41 was not declared incompatible with human rights law. It used its interpretative duty instead.
- S.3 HRA - national legislation must as far as possible be read and given effect in a way compatible with Convention rights. o S.41(3)(c) - cross-examination on consent only when previous conduct is 'so similar to...any other sexual behaviour of the complainant which...took place at or about the same time as the event, that the similarity cannot be explained as coincidence"
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