Procedural Amendments for Adducing Sexual Behaviour Evidence Under s. 41 of the Youth Justice and Criminal Evidence Act 1999

Abstract

Section 41 Youth Justice and Criminal Evidence Act (YJ&CEA) 1999 severely restricts the ability of the defence to ask questions or to adduce evidence concerning ‘any sexual behaviour of the complainant’ (s. 41(1)). The use of sexual behaviour evidence had attracted considerable controversy prior to the enactment of s. 41. The provision in s. 41 intended to strike a more even balance between the interests of sexual offence complainants, who should not be subject to the introduction of irrelevant evidence concerning their previous sexual conduct, and the interests of defendants, who should be afforded the opportunity to adduce probative material in the course of their defence. The sixth amendment to the Criminal Practice Directions (CPD) 2015, supplementing the Criminal Procedure (Amendment) Rules 2018 SI 2018/132, amending, inter alia, CPD V 22A, came into force on 2 April 2018. CPD V 22A provides detailed guidance concerning the handling of applications to adduce sexual behaviour evidence in this controversial and complex area of the law.

Applications to Adduce Sexual Behaviour Evidence

Part 22 of the Criminal Procedure (Amendment) Rules 2018 sets out the application process for adducing sexual behaviour evidence. Of particular importance is the requirement for the defence to give notice of an intention to question the complainant or adduce evidence of his or her previous sexual behaviour (Crim PR 22.4). Despite their existence, the notice requirements have not always been strictly adhered to (See for example R v McKendrick [2004] EWCA Crim 1393 at [55]). A failure to follow the correct application procedure can potentially amplify the distress suffered by sexual offence complainants who may be caught off guard by the introduction of sexual history evidence which otherwise might have been excluded if correct procedures had been followed. CPD V Evidence 22A.5 stipulates that ‘late applications should be considered with particular scrutiny especially if there is a suggestion of tactical thinking behind the timing of the application’. In 2006, a Consultation paper released by the Office for Criminal Justice Reform noted that,

in some cases, very late applications are being made by the defence for previous sexual history evidence to be admitted. Such late applications frustrate the effectiveness of the legislation as victims are unprepared for such cross-examination and fail to give their best evidence. (Office for Criminal Justice Reform, Convicting Rapists and Protecting Victims—Justice for Victims of Rape, A Consultation Paper (2006) at [11])

Prosecutors may also be caught off guard by in-trial oral applications to adduce sexual behaviour evidence without having had sufficient opportunity to respond. In terms of the legislation itself—which has been subject to fierce criticism because of its complexity—it has also been observed that in-trial oral applications:

[have] meant that some of the requirements of the law—that the subsections under which the application is made are specified, that the questions to be asked are listed, and that reference is made to specific instances of sexual behaviour—could be more easily evaded. (Liz Kelly, Jennifer Temkin and Sue Griffiths, ‘Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials’ (Home Office: London, 20/06) (vii))

Thus, s. 41 applications that do comply with the correct procedural requirements give judges more time to consider in greater detail whether and to what extent the application should succeed. As Sharp LJ observed in R v Crossland ([2013] EWCA Crim 2313), ‘[t]he rules are there for a reason. The failure to comply with them makes it more likely that things will go wrong at the trial’ (at [28]). With this in mind, Part 22A.6 follows the approach adopted in R v Musone ([2007] 1 WLR 2467) regarding hearsay evidence in which Moses LJ opined that, ‘the judge was entitled to exclude [the] evidence in circumstances where he concluded that the defendant had deliberately manipulated the trial process so as to give his co-defendant no opportunity of dealing properly with the allegation’ (at [2481]). In R v Lockwood ([2005] EWCA Crim 3304) the Court of Appeal demonstrated strict procedural compliance even in circumstances where it was not suggested that dubious defence tactics were at play in relation to a late application but rather ‘counsel’s oversight’ (at [9]). Nonetheless, the Court of Appeal agreed with the trial judge that the application was made ‘far too late to bear proper consideration’ (at [13]).

Relevance Factors

22A.3 stipulates that ‘…the defence should identify clearly for the judge the suggested relevance it has to an issue in the case’. Long before the enactment of s. 41 during the era of Parliament’s first statutory intervention to control the use of sexual behaviour evidence—s. 2 of the Sexual Offences (Amendment) Act 1976—it was considered bad defence tactics to make applications which were likely to be refused (Criminal Law Revision Committee, Fifteenth Report Sexual Offences, (Cmnd 9213, 1984) at [2.87]). Thus, counsel were required to consider applications to adduce sexual behaviour evidence far more carefully than had been the case under the common law prior to the 1976 Act. Following the enactment of s. 41, research undertaken by Kibble suggested that judges and advocates recognised the underlying purpose and framework of the provision. One judge remarked that ‘[t]he prosecution will formulate an argument to the judge and the defence will have to consider what they wish to cross-examine on and put it within the framework of the Act and apply their minds to it very carefully’ (Neil Kibble, ‘Section 41 Youth Justice and Criminal Evidence Act 1999: Fundamentally Flawed or Fair and Balanced?’ [2004] Arch News 6, 7). This research is as relevant now as it was back in 2004 in light of a recent Ministry of Justice Study (Ministry of Justice, ‘Limiting the use of complainant’s’ sexual history in sex cases, Dec 2017 Cm 9547) which revealed that the admissibility of sexual behaviour evidence is ‘exceptional’ (at [11]) and that judges are alert to dubious defence tactics which attempted to evade the legislation.

Cross-Examination of Sexual Offence Complainants

Since the 1970s, the criminal justice system in England and Wales has attracted considerable criticism regarding its treatment of sexual offence complainants. This criticism emanated from the widely held view that sexual offence complainants have not received adequate protection during the trial process. Notwithstanding the effect of s. 34 of the YJ&CEA 1999, which prohibits personal cross-examination of the complainant by the defendant in sexual offence proceedings—and the introduction of special measures so as to improve the quality of the evidence—the trial process still causes distress for complainants where evidence concerning their previous sexual behaviour becomes an issue in the proceedings. Part 22A.8 of CPD V reminds advocates ‘…that the questioning must be conducted in an appropriate manner’. Any aggressive, repetitive questioning will be stopped by the judge. This therefore builds upon the requirement laid down in the Criminal Procedure (Amendment) Rules 2018, Part 22.7(3) which provides: Where the court allows the cross-examination of a witness, the court must give directions for the appropriate treatment and questioning of that witness in accordance with rule 3.9(6) and (7) (setting ground rules for the conduct of questioning). The effect of CPD V 22A.8 therefore is to impose a duty on the judge to intervene where, in his or her consideration, cross-examination is conducted in an aggressive manner.

A further measure imposed by CPD V 22A.8 requires the judge to ‘intervene and stop any attempts to refer to evidence that might have been adduced under s.41, but for which no leave has been given and/or should have formed the basis of a s.41 application, but did not do so’. One such example of evidence which could smuggled into court relates to evidence of previous false complaints made by the complainant which the defence wish to put to the complainant in cross-examination. It was affirmed in R v T; MH ([2002] 1 WLR 632) that as far as s. 41 is concerned, questions or evidence regarding a sexual offence complainant’s previous false statements are not questions about the ‘sexual behaviour’ of the complainant because they relate not to previous sexual behaviour but to past statements regarding such behaviour. However, as Lord Keene stated in R v T; MH, ‘[i]t would be professionally improper for those representing the defendant to put such questions in order to elicit evidence about the complainant’s past sexual behaviour as such under the guise of previous false complaints’ (R v T; MH [2002] 1 632 at [41]). In this regard CPD V 22.A sets out good practice already undertaken but serves to remind trial judges to be aware of the potential for abuse regarding the introduction of evidence or cross-examination concerning false complaints of sexual offences.

Conclusion

The admissibility of sexual behaviour evidence continues to give rise to polarising debate. The controversial, albeit successful, appeal of professional footballer Ched Evans in 2016 (Evans v R [2016] EWCA Crim 452), aroused claims that sexual behaviour evidence ‘continues to be admitted in a considerable number of trials’ (Clare McGlynn, ‘Rape Trials and Sexual History Evidence: Reforming the Law of Third-Party Evidence’ [2017] JCL 81(5) 367 at [368]). What followed was a number of unconvincing and unworkable reform proposals, such as that presented by the Labour MP Harriet Harman who called for an absolute prohibition on the admissibility of sexual behaviour evidence. Given that s. 41 in its literal form required intervention by the House of Lords in R v A (No.2) ([2002] 1 AC 45) to provide a workable interpretation of the provision under s. 3 of the Human Rights Act 1998, then the prospect of an outright ban seems highly implausible. Notwithstanding calls for a more coherent alternative to s. 41—which has proved difficult to apply in practice—an important area for judicial training would be to emphasise the importance of compliance with the amended Rules and CPD V 22.A application procedures. This will enable courts to decide upon the merits of s. 41 applications with all the information at hand including representations from all parties who have had the opportunity to evaluate the evidence.

Brian Brewis