Admitting Evidence of Homosexuality in Trials Involving Serious Sexual Offences: Highlighting the Issue with Judicial Directions as a Panacea to Prejudice

Introduction

This article offers significant insights into the ways in which the law of evidence ¹ delimits when evidence of homosexuality is admissible as bad character evidence (BCE) within the criminal trial. The ‘homosexual’ as a term within legal discourse was introduced by the Sexual Offences Act 1967. ² Partial legalisation of homosexuality marked a long overdue and important change to the law and conceptions of justice. ³ This change to the substantive criminal law of England and Wales suggested a steady acceptance of homosexual relationships; the interpretation and application of rules of evidence highlight the changing attitudes to homosexuality and how this impacts upon the Criminal Justice System on an ongoing and observable basis.

The article will undertake a new and evaluative critique of case law admitting evidence of homosexuality (either in the sense that it is intrinsic to the offending category and is therefore the subject of a conviction, or non-conviction behavioural evidence admitted to demonstrate/suggest homosexuality on the part of the defendant) historically as similar fact evidence (SFE) and later, under the common law out with the Criminal Justice Act 2003 (CJA 2003) if the evidence is not underpinned by a prior conviction. ⁴ Whilst homosexuality has previously been admitted as SFE and associated with sexual deviancy, over time the legal landscape has inexorably changed. The abolition of the previous common law/statutory regime and consolidation of the law regulating the admissibility of BCE into the CJA 2003 brought into existence a definition of BCE that requires ‘reprehensible behaviour’ or the commission of an offence so any evidence suggesting homosexuality on the part of a defendant must be dealt with outside of the statutory regime (where the conduct is not illegal/the commission of an offence). ⁵ This is undoubtedly positive but is not without consequences for the admissibility of homosexuality. The case analysis herein reveals that only conviction-based evidence of homosexuality benefits from the admissibility safeguards that complement the gateways to admissibility of BCE within the CJA 2003 and promote fairness/consistency in approach. The common law requires relevance and is not without an exclusionary discretion, but insights gained herein suggest this rarely keeps evidence of homosexuality out of the trial where it has any explanatory value or prevents jury speculation/being misled as to the defendant's family life. With respect to non-conviction-based evidence of homosexuality, the article identifies one significant theme emerging in the existing case law – an emerging over-reliance upon the jury direction as a means of reducing prejudice brought about by admission. The article identifies shortcomings in the current approach that result in under-utilisation of guidance on what the content of such a direction should be despite its inclusion in the Crown Court Compendium and despite identification of an ideal template in the case of IJ. ⁶ The availability of suggested templates for reform in the apposite section of the Crown Court Compendium suggests further action is needed, and the article draws upon jurisdictions such as Victoria and Scotland in support of an argument for legislative intervention, mandating inclusion of the compendium guidance in (existing or new) legislation to ensure such guidance is provided to a jury in order to assist them in reconciling evidence of this kind.

Powder Puffs and Painted Boys: The Admissibility of Homosexuality as Similar Fact Evidence

Prior to the implementation of the CJA 2003 the admissibility of SFE was regulated via a mixture of common law and statute. ⁷ Where the wearing of cosmetics or possession of items such as a powder puff ⁸ could be adduced in evidence these were enough, in interwar London, to suggest homosexuality and this was explicitly linked to sexual deviancy. ⁹ In cases such as Thompson v R, Viscount Reading C.J. stated that: ‘It is well known to those who have experience of these cases that persons who commit abominable crimes or acts of gross indecency with male persons make use of appliances such as powder and powder puffs and implements such as objectionable pictures for the purpose of carrying out their designs’. ¹⁰ This was echoed by Lord Sumner in the House of Lords. ¹¹ The significance of cosmetics in this case highlights a reliance on effeminacy as evidence of homosexuality, and homosexuality as a perceived indicator of deviancy/abnormal propensity. The use of powder puffs took on a unique significance as a kind of ‘tool of the trade’ when viewed in the context of the charged offences. ¹² Houlbook iterated this specific categorisation: ‘[the] judicial system often seemed captivated by the ephemeral traces of queer material culture… In one sense, cosmetics were equivalent to the material evidence that characterized prosecutions for other offences – the jemmy, for breaking and entering, or cocaine, for drugs offences’. ¹³ Such parallels were drawn in these cases as a rationale for admission of powder puffs and other relevant photographs. Indeed, in the case of Sims, ¹⁴ comparisons were drawn with tools to facilitate burglary and abortion, the court going so far as to explain the significance of the powder puff as follows: ‘The admissibility does not… depend on the circumstance that the articles might have been used in the crime. If there is any other specific feature connecting the articles with the crime, it will suffice… The specific feature in such cases lies in the abnormal and perverted propensity which stamps the individual as clearly as if marked by a physical deformity’. ¹⁵ The presence of this special feature distinguished the evidence, making it about more than a mere bad disposition. It was, according to the court, admissible for this reason. The qualification of these ‘tools of the trade’ as a special category seemed to rest upon a perceived effeminacy that underpinned their use. ¹⁶ This is not the only problematic conflation employed to justify admission; to say that a homosexual man is more likely to have committed a sexual offence where the alleged victim is a male amounts to an obvious and inescapable conflation of sexuality and sexual violence. ¹⁷ To say a man has a sexual interest in other men does not amount to saying he has a sexual interest in other men/boys, irrespective of consent. The perceived probative value of these behaviours rested upon the assumption that everyone reveals their sexual identity, and it becomes fixed and remains consistent over time. ¹⁸

The Decline of the Powder Puff and the Need for more than Mere ‘Stock in Trade’ Methods-Based Justifications

As time passed, however, the reasoning employed to justify admission (and upheld in some cases on appeal) shifted. ¹⁹ Homosexuality, of itself, was no longer sufficient to infer a relevant disposition. This decoupling of homosexuality and sexual crimes was an important starting point in the move away from the illogical inferences described in the previous section. In cases such as DPP v Kilbourne ²⁰ the House of Lords supported the treatment of multiple counts as corroborative but only on the basis that the counts were sufficiently similar that they could show not just that the accused was homosexual but also that his homosexual proclivities took a particular form. ²¹ In addition to the above, it was specifically recognised by Lord Reid that a special rule for homosexual crimes was inapplicable and social mores had been transmogrified: ‘If there ever was a time for that, that time is past, and on the view which I take of the law any such special rule is quite unnecessary’. ²²

Driven by a perceived shift in public perceptions on homosexuality, we see progressive differences in both the language used, and in the substance of the decisions regarding the admissibility of SFE. In the landmark case of Boardman, ²³ the appellant was charged with buggery offences. ²⁴ The question on appeal related primarily to whether his specific homosexual proclivities were adequately probative, by virtue of being strikingly similar to the incidents in question, such that they could safely be admitted. Particular emphasis was put on the fact that the appellant, a headmaster of a language school, was alleged to have requested a passive role in the course of the indecent assault, having asked the students in question to perform the ‘dominant role’ during sex. ²⁵ Lord Wilberforce confirmed that there was no special rule applicable to sexual or homosexual cases as had been suggested in the earlier cases of Thompson and Sims. The assertion that such a rule may apply where offences ‘take a particular form’ was constitutively denigrated as, ‘so vague an epithet’ ²⁶ that it should not erode the rule of exclusion. As regards the ‘unusual behaviour’ highlighted above, it was recognised that fine distinctions between ‘normal’/‘abnormal’ homosexual acts lent an ‘unattractive reality’ to the law. ²⁷ The inherent limitations in the capability of the judiciary to make judgements on ‘normal’ behaviours relating to homosexual activity were also highlighted by Lord Cross. ²⁸ Most importantly, changes in the ordinary man/woman's perceptions of homosexuality and its place in society were recognised and the observations of Lord Sumner in Thompson v The King in 1918 were described by Lord Cross as sounding ‘like a voice from another world’. ²⁹

Ultimately in Boardman the appeal was dismissed on the basis that there had been sufficient similarity to satisfy the exception to the Makin rule, ³⁰ nonetheless this recognition of an increase in societal acceptance of homosexuality seems to have facilitated a departure from earlier tendencies to admit evidence of homosexuality, based purely on the assumption that the existence of such a fact could be a perceived indicator of guilt. Alongside, a growing scepticism regarding the implementation of ‘labels/catchphrases’ to underpin admissibility accelerated change further – ‘striking similarity’ and ‘positive probative value’ were catchphrases deemed liable to mislead more than they aided admissibility decisions. ³¹

CJA 2003 and the New Framework for Admitting BCE

The implementation of the CJA 2003 brought about widescale reform. The law regulating the admissibility of BCE was put entirely on a statutory footing, and a definition of BCE was provided in s98, supplemented by section 112, CJA 2003. The definition of BCE is as per s98 CJA 2003: ‘evidence of, or of a disposition towards, misconduct on his part, other than evidence which – (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence’. S112 states that misconduct is ‘the commission of an offence or other reprehensible behaviour’. Crucially, s99(1) CJA 2003 was enacted, abolishing the old common law rules governing the admissibility of BCE. Statutory rules pre-dating the 2003 Act were abolished by Part 5 of Schedule 37 CJA 2003. As a result, admissibility depended entirely on the new statutory framework. Where misconduct evidence fell within the scope of the definition of BCE, ³² it would be admissible as a starting point, provided one of the gateways to admissibility in s101(1) CJA 2003 were met.

The Definition of BCE

The implementation of the CJA 2003 undoubtedly changed the legal framework regulating the admissibility of behaviours indicating homosexuality as BCE. In part, this could be because the reforms significantly increased the uses to which BCE could be put and arguably widened admissibility, including where the purpose of the BCE was to show propensity directly. ³³ BCE ³⁴ was now admissible ‘if, but only if’, a s101(1) gateway could be met (of which there are seven). ³⁵ Gateway (d), ³⁶ for example, could be used to demonstrate either a propensity to commit offences of a particular kind ³⁷ or a propensity to be untruthful. Gateways (c), (f) and (g) respectively permitted the use of BCE where it had important explanatory value and the jury could not understand the evidence without it, where it corrected a false impression, and where the defendant had attacked the character of another. ³⁸ Inherent within each gateway are requirements to be met before admission is permissible and some gateways, for example s101(1)(d) and (g), ³⁹ are subject to additional statutory safeguards requiring exclusion of BCE where it is so adverse to the fairness of proceedings that the court ought not to admit it. ⁴⁰ Where misconduct evidence is caught within the statutory definition of BCE and engages the admissibility regime there are safeguards at play to protect a defendant from unfair use or admission of the BCE, in addition to the safeguard within s78 Police and Criminal Evidence (PACE) Act 1984. ⁴¹ In light of this, it is important to consider whether evidence pertaining to homosexuality has been admissible under the new regime and, if so, whether this was as BCE.

Homosexuality and the Definition of BCE

In R v IJ, ⁴⁹ an appeal against convictions for buggery, indecent assault on a male person and sexual activity with a child family member, the prosecution sought admission of the unexpurgated contents of the appellants initial police interview in which he admitted using homosexual internet chatrooms for two years, this use having facilitated an affair with a 20-year-old man at the time. Prosecution counsel argued this information was relevant to the issue of whether ‘the appellant was a man, who, despite being married with children, had a sexual interest in males’ and alleged that there were crossovers/similarities between counts in the indictment. ⁵⁰ It was also argued that, unless they heard about the appellant's previous involvement with these chatrooms and the ensuing affair, the jury may be left with a false impression – that is, that the appellant's marriage would indicate that he was a long-term heterosexual male.

The judge at first instance accepted that the evidence was relevant and allowed admission on the basis that it corrected ‘what would otherwise be probably a wholly false impression’, discounting the risk of prejudice on the basis that it was not propensity evidence and should not at that time attract prejudice, though a thorough direction would mitigate any prejudice that might occur. ⁵¹ It must be said that the direction provided was indeed comprehensive on this issue and addressed the risk of prejudice directly. The judge was explicit in their instruction to the jury regarding the extent to which the evidence could be relevant, highlighting that the evidence related to an affair with an adult male, that it was consensual, and therefore did not show a proclivity towards forced sexual relations with boys or young men. ⁵² One helpful analogy was provided as follows: ‘Not every heterosexual man has an interest in young girls. Not every homosexual man has an interest in boys’. ⁵³ This direction has since been held as a sort of ‘gold standard’ for directions in cases where homosexual behaviours are admitted into evidence. Where this is acknowledged within the case law, contextual discussions appear to suggest that this direction stands out by virtue of its efforts to address and mitigate the potential prejudice that could arise from the admission of this evidence, alongside the faulty reasoning and biases that could occur.

It was not argued that homosexuality constituted reprehensible behaviour, putting the actions of the appellant within the scope of the definition of BCE in s98 CJA 2003. ⁵⁴ Instead it was accepted that if such evidence is admissible, it would be at common law. This is in keeping with the case law cited above which has demonstrated that where misconduct evidence falls outside of the definition of BCE it is only admitted if it meets common law tests. ⁵⁵ Homosexual conduct is conduct that is no longer illegal, nor could one feasibly argue that it amounts to reprehensible behaviour in any event. However, employing Manister-based considerations, ⁵⁶ the Court of Appeal in IJ decided that whilst the evidence did not correct a false impression at the time the judge (at first instance) had taken the decision to admit the evidence, ‘A sexual attraction by one male for another is still, we think, sufficiently unusual to make that disposition relevant to the question whether this appellant had an innocent or a sexual association with his own male children’. ⁵⁷ The court went further in holding that, whilst the probative value was modest, the judge had been correct to admit the evidence as his direction was sufficiently thorough, it narrowed the purposes to which the evidence should be put and there was no reason to think the jury would not have listened to the judicial instructions provided. ⁵⁸

It is encouraging to see the Court of Appeal making statements that evidence a decoupling of homosexuality and propensity/sexual deviance. Progressive statements are made, such as the acknowledgement that a man may indulge the homosexual side of his sexual nature and such a thing should not be prejudicial or classed as reprehensible behaviour in 2011. ⁵⁹ Having acknowledged such progressive statements, it is still disappointing to see that in 2011 the appellate court admitted this evidence on the basis that being homosexual is ‘sufficiently unusual’. This arguably undermines the aforementioned statements to some extent, given the reasoning it risks encouraging is that the appellant is more likely than the rest of the population to have committed the offences because he is gay/bisexual. Setting evidence relating to homosexuality outside of the scope of BCE, as natural as that may feel, does not guarantee that it will not be put to a use similar to those facilitated by the seven gateways in the 2003 Act. If homosexual conduct is admitted into evidence and used in similar ways to those facilitated by the 2003 Act, it will have circumvented the safeguards inherent within the statutory regime by being admitted at common law instead. The ease of admission of evidence of an affair with an adult male/use of homosexual chatrooms in a case relating to sexual offences against young boys in IJ illustrates this to some extent. Undoubtedly, there will be cases in which admission would be appropriate. Where a defendant, accused of a sexual offence against men/boys states categorically that they have no interest in men/boys and there is evidence to the contrary admission is necessary to ensure the jury have access to all relevant information. Admission under the common law undoubtedly requires a careful balance of probative value and prejudicial effect too, but the post-CJA 2003 position on admitting homosexual behaviours does feel like it eases admission to some degree and indeed some of the older case law required ‘enhanced relevance’. That said, there would be no benefit to reverting to the pre-CJA 2003 common law position where we left it – as the Law Commission recognised in 2001: ‘DPP v P has the character of a rule of law …There is no room for any discretion which entails the weighing of probative value against prejudicial effect, because that is itself the test of admissibility’. ⁶⁰ S78 is available to us as an exclusionary discretion now, and in the cases we have wherein evidence of homosexuality is an issue it has not shown itself to be a reliable solution.

A reliance on judicial directions emerged in IJ as a means to alleviate any risk of prejudice but this may not be enough. There are only a small number of reported cases wherein the admissibility evidence of homosexuality is considered but these suggest that the directions provided for jurors are patchy and inconsistent with respect to clarity and quality (and parenthetically, that homosexuality is almost always admitted into evidence).

Jury Directions as a Panacea for Prejudice

It is concerning to see that the jury direction emerged here too as a panacea to the prejudice evidence of homosexuality might endanger. This is a problematic solution as it is underpinned by the assumption that jurors understand and follow the direction they are given but this is not supported by mock juror studies. Whilst findings vary according to evidential category/trial issue the jury are grappling with, from an over-arching standpoint the consensus is that they do not always understand or follow instructions as intended. As Maxwell and Byrne argue: ‘traditional jury directions are difficult for jurors to understand and apply. We can no longer assume that jurors are complete and accurate recorders of information, who suspend judgment until the end of the case and then reassess all of the evidence in the light of directions given, for the first time, at the end of the trial’. ⁶¹ Thankfully it would appear to be the case that, whilst a jury direction is insufficient as a means to deal with prejudice for problematic categories of evidence (such as is the subject of this article), an explicit reliance upon the direction as a means of doing so opens up the possibility of appeal where a jury direction falls short of the requirements.

One of the more recent, relevant cases (at the time of writing) is Usher, ⁶² in which the judge raised the issue of the applicant's sexuality. This is an example of Court of Appeal intervention where the common law admissibility criteria were applied in place of the BCE regime. The appellant appealed against his conviction for sexual assault on the basis that when neither counsel had raised the appellant's homosexuality as an issue, the judge had asked the applicant: ‘I do not know why neither counsel has asked this question so far, but are you homosexual?’ ⁶³ It was accepted that this flustered the defendant who initially did not wish to disclose, but when pressed by the judge divulged that he was of open sexuality. Counsel for the appellant asserted that such a question should have been treated either as BCE, or should not have been put due to an excessive risk of prejudice, noting that it suggested a relevant propensity to the jury. ⁶⁴ Prosecuting counsel supported this initially, but modified their position later. ⁶⁵ The judge asserted that such a question would augment juror understanding, and stated that the jury might wonder how the complainant had come to make an allegation of homosexual assault against a homosexual man, though the judge went on to accept that because the complainant was not asked about this in evidence and there would be no further opportunity to do so this would be unfair. It was decided this would be dealt with via the judge's directions to the jury. ⁶⁶ The judge was of the opinion that such a question was admissible because whilst it should not show propensity it could show an interest in sexual conduct of a particular type, and went some way in facilitating an interpretation of Facebook messages that had been admitted as evidence of the alleged conduct having occurred. ⁶⁷ The jury direction reflected this, in that it warned jurors not to infer propensity, but to recognise the evidence as being relevant to an interest in homosexual conduct and the Facebook messages that followed the timeframe within which the offence was alleged (in deciding whether the content amounted to sexual innuendo, or not).

It is described as ‘common ground’ in Usher that being homosexual does not qualify as BCE through lack of compliance with the definition in the 2003 Act, s.98. ⁶⁸ Once again we see admission via common law, justified by the provision of a judicial direction on any associated risks. Whilst one might argue that there is an emerging over-reliance upon judicial directions as a panacea to prejudicial reasoning (given their potential shortcomings in this regard), this reliance does appear to cut both ways. The Court of Appeal in Usher allowed the appeal on the basis that the judicial direction provided was not sufficiently strong, the court also described the evidence of the applicant's open sexuality as irrelevant, unfair and prejudicial. ⁶⁹ Significantly, statements made by Lady Justice Sharp demonstrate an awareness of and a realistic take upon the likelihood of prejudice here: ‘In the real world, the evidence was likely to lead to an impermissible line of reasoning by the jury, namely, that because the applicant was homosexual, it was more likely that he had sexually assaulted JP in the manner alleged’, that is, propensity by another name (given the conduct was not treated as BCE so was not propensity in that context). ⁷⁰ Further, the court identified an enhanced likelihood of this happening by virtue of it having been the judge that elicited the evidence. ⁷¹ Whilst Usher is a relatively compelling example of the judicial direction as a safeguard, it is also an illustration of one of its greatest drawbacks as a safeguard – it operates much too late. This is a safeguard that operates post-admission of the evidence, when what is needed is a safeguard that prevents (where appropriate) jury exposure to such evidence in the first place. It is a fact that the text messages were compelling evidence of what may have occurred and should have been admitted as such but the justification for admission of the appellant's open sexuality in addition to this as a means to interpret these messages is problematic. The text messages could have been sent by someone of any sexuality ⁷² and a reliance upon directions to manage the impact of evidence of these is virtually worthless where it is the judge themselves that brought such evidence to light in the first place.

In the case of Usher, the summing up/direction by the judge was deemed insufficient and this was a contributing factor to the appeal being allowed. In Peter Alexander B, a case involving an appeal against conviction for 18 counts of indecent assault on a male, one count of buggery, two counts of indecency with a child and two counts of attempted rape, the prosecution adduced evidence relating to a homosexual relationship the applicant (then 21) had previously undertaken with a 17-year-old male. There was also evidence of the applicant having visited a gay bar with the same man. In a similar line of reasoning to that seen in the case of IJ the admission of the above conduct was challenged because of its irrelevancy and the potential for a propensity assumption by the jury. Though, in this case, the applicant had put the issue of his sexuality in play himself, as in interview he had denied being homosexual, stating that the thought of engaging in homosexual acts with other men made him feel sick. ⁷³ The court noted the striking nature of these statements, and that the applicant had made them to bolster his defence. ⁷⁴ The evidence was therefore admitted to prevent the jury forming a misleading impression that would ultimately disrupt the fairness of the trial. To that extent a Lucas direction was also called for to direct the jury on how to deal with the issue of lies told by the defendant. Most interestingly in Peter Alexander B, the court noted that there could only be a risk of prejudice where the jury are likely to infer that homosexuality alone could provide sufficient foundation for a propensity inference. Whilst there would be no logic in such an assumption, the court noted the historic prejudice that has existed and recognised that as this is an area where such illogical inferences have historically been drawn where homosexual conduct is at play there is even more reason to insist upon a judicial direction that is worded in strong and comprehensive terms. The court granted permission to appeal on these grounds, holding that the direction given was insufficient in light of the ruling in IJ.

The case of IJ seems to be held as the gold standard here as it provides a sort of framework for the judicial direction needed to remedy any potential prejudice following admission of homosexuality as non-BCE. As such, it is re-assuring to see that this need for a thorough direction to justify admission seems also to provide a tool by which the court can evaluate the fairness of such a decision on appeal. The bar for how strong and comprehensive such a direction should be does appear to be fairly high, and rightly so. There is a need for flexibility, but outside of the probative value > prejudicial effect test housed within the common law discretion (and s78 PACE 1984 safeguard), the relevance test and judicial direction are the only tools we have now to ensure admission is safe from the kinds of illogical assumptions that historically informed admissibility assessments in this area. Given that more recent cases have admitted evidence of homosexuality even where probative value was modest and prejudicial effect was potentially high, there is clearly still an appreciable risk associated with admitting evidence of the kind considered herein and the approach moving forward needs to be considered very carefully.

Whilst there is an insufficient number of cases available (following the 2003 Act reforms) to establish a pattern, it is clear from the decisions that are available that evidence relating to homosexual behaviour that does not form a conviction or amount to the commission of an offence has been set outside of the statutory regime for BCE and is instead subject to common law tests and s.78 PACE 1984. Further, there has been a tendency towards admission of these homosexual behaviours in evidence where particular circumstances are at play:

Something has occurred that risks misleading the jury/creating a false impression so evidence of homosexual behaviours is provided to mitigate this. The defendant might have put their own sexual orientation in issue via denials of homosexuality in interview (particularly where the statement is made to bolster their defence) but reference to an existing marriage can be enough.

The opposing end of this distinction relates to behaviours that form the basis of a conviction, or would amount to the commission of an offence – only a tiny number of cases are available on this point, but so far the tendency is to admit here too, despite the volume of safeguards attached to the BCE regime.

The Admission of Homosexuality as BCE: Previous Convictions for Buggery

The case of Laws-Chapman ⁷⁷ involved allegations of historic sexual offending against a boy of 12/13 years old. The BCE the prosecution had successfully sought to admit (which was challenged on appeal) was a single conviction for buggery, dating back to 1985 which involved a 17 year old and may well have been consensual. ⁷⁸ The judge cited the gateways in s101(1)(f), (d) and (g) as routes to admissibility but identified gateway (d) as the primary route, despite acknowledging that with respect to section 103(2) the applicant's conviction was not for an offence of the same category as either of the charged offences in that it related to an offence against a 17 year old. ⁷⁹ The judge justified admission on the basis that the conviction gave the jury a basis for accepting that the appellant may have had a sexual interest in young boys and that any prejudice it might create could be cured by a direction to the jury. ⁸⁰ The appeal was allowed, the Court of Appeal finding that admission was unsafe due to irrelevancy and the prejudicial effect the evidence could have. It was acknowledged that consensual and lawful sexual conduct was irrelevant in the context of the offences alleged irrespective of whether the defendant was heterosexual or homosexual. ⁸¹ S103(3) CJA 2003 required an analysis of whether the time passed since the past behaviour, or any other reason, would make admission unjust. As is already acknowledged, there is not enough case law to draw a firm conclusion here, but there is enough evidence in those we do have to suggest that there is still too frequent admission of evidence of homosexuality on the basis that it somehow sets the appellant apart from the rest of the population as being more likely to commit such an offence when the same argument would not be made of a heterosexual male. In Laws-Chapman the evidence had limited relevance and was also very old, and even this did not prevent admission at first instance. Whilst this is undoubtedly of concern, the safeguards inherent within the 2003 Act provide a means by which admission can be challenged successfully on appeal. It is unfortunate that where the evidence of homosexuality takes the form of non-conviction BCE, the jury direction seems to be the proposed means of dealing with prejudice, despite the inherent unreliability of this method.

Proposals: What is Needed Going Forward…

David Blunkett, the then Secretary of State, introduced the White Paper behind the CJA 2003 entitled ‘Justice For All’ ⁸² to the House of Commons on 17th July 2002 stating that it ‘will make the rules of evidence simpler and clearer. Relevant previous convictions will be admissible where the judge believes that that would be helpful to the jury, without prejudicing the defendant's right to a fair trial’. ⁸³ One might argue that the latter half of this statement has been achieved. BCE is now subject to an inclusionary rule. ⁸⁴ When it comes to simplification and increased clarity though, there is some way to go. To look wholesale at the efficacy of the statutory regime is beyond the scope of this article, but with respect to homosexuality one cannot even point to codification of the rules as an improvement as there is now a distinction between homosexual behaviours evidenced by a conviction and those that do not amount to the commission of an offence. Convictions must surmount the gateways to be admissible, despite the fact that where they pertain to consensual sexual activity between males one might question whether they should be viewed as BCE at all given the offences that underpin them no longer exist. Outside of the fact that a previous conviction might demonstrate a prior willingness to act outside of the law there is little to justify categorising convictions for buggery as BCE. According to the strict wording of ss98/112 CJA 2003 the commission of an offence is BCE, so consensual sex between adult males should not be categorised as BCE. Categorising evidence of homosexuality as reprehensible behaviour is inappropriate so non-conviction-based evidence of homosexuality should not sit within the BCE admissibility regime in its current form. For the reasons argued above convictions demonstrating homosexual behaviours between consenting adults should not either, but the consequence of such a decision is that the bespoke safeguards that exist within the BCE admissibility regime are rendered inaccessible. There is, as a result, an existing issue for evidence of this type that must be remedied sooner rather than later – despite common law safeguards evidence of homosexuality is too easy to admit and as will now be discussed, directions are not the panacea to prejudice that they may be thought to be following admission.

With respect to homosexual behaviours that do not amount to the commission of an offence (ever/any longer) there appears to be a level of undue optimism around admissibility that seems to be catalysed by an acknowledgement that we are not categorising homosexuality as reprehensible behaviour therefore we are not acting unconscionably and directions can be used to remedy any prejudice. The historical analysis of Thompson, Sims and others demonstrated how prone to prejudice decision-makers have been on this point historically. The risk is too high and the use of judicial directions is arguably unreliable. At the very least – too many of the relatively small subset of cases identified in this article are appeals that find success because of an insufficiently rigorous judicial direction – this is not a panacea and requires further thought and formal guidance.

The case of IJ, as confirmed in the case law that followed it, seems to set the standard here in terms of the extensive direction that is required to nullify any prejudice that may result from an admission of homosexuality, assuming such a thing is even possible. It was noted in IJ that the judge used powerful words that meant that ‘the sting was drawn save for the strictly limited purposes which the judge identified’ ⁸⁵ :

The judge gave an explicit warning to the jury that they must not conclude that the appellant's homosexual activity showed any propensity to commit the offence charged. In particular, the evidence established no sexual interest in boys, nor an interest in unwanted or forced sexual activity with boys or young men. Neither, the judge directed the jury, did the fact of homosexual activity of itself have any bearing on his credibility as a witness. The judge directed that the evidence was relevant only to the true nature of his family life and to the question, whether, by reason of his homosexual activity, he may have been the victim of malicious complaint. ⁸⁶

Whilst it is obviously of the utmost importance that the uses for which evidence is admitted should be outlined as clearly as in the final sentence of the above excerpt from IJ, the phrasing emphasised in bold type by the author are arguably of most significance in a general sense. If evidence of homosexuality/sexual orientation evidence is to continue to be admitted via common law principles then it is crucial that the statements highlighted in bold font are provided as the absolute minimum that a judicial direction should include where evidence of homosexuality is in play. This basic formula, minus the warning regarding defendant credibility, is reflected in Part I of the Crown Court Compendium which (in addressing the need for warnings about assumptions where the trial is for a sexual offence) recommends the following in Example 14:

Defendant is a gay man and alleged victim a child of same gender {Adapt appropriately for gender}

This jury direction is crucial and is the only safeguard that seems to be common to both the 2003 Act regime and the common law. An insufficient direction has been reason to appeal and the reason why some appeals have been successful. The recommended wording in the compendium is demonstrative of an awareness of this important issue and a progressive approach to it but does need some fine tuning. In IJ the direction included a reflection on the reasons for admission in the context of the case as a whole and the defendant's objections were recognised – there are no prompts for inclusion of either (as appropriate, on a case-by-case basis). Of most concern though, is the potential for confusion caused by the last sentence of the compendium's recommended wording. It makes no sense to instruct a jury that they have been provided with information as background, then tell them it has no significance at all. What are jurors to do with such information then? It is acknowledged that the compendium explicitly states that it is not intended to be prescriptive, nonetheless, as a starting point for building and delivering an effective summing up/direction for jurors it could be improved. The jury in IJ were specifically told the relevance of the homosexual behaviours put to them, that is, that they were to ensure they were not misled and did not form an incorrect impression. This is surely preferable to simply telling them it does not matter when there is presumably a justification behind its admission?

The New York Unified Court System Preliminary Remarks and Final Instructions both make explicit reference to the need to be aware of implicit/unconscious bias and the importance of ensuring that as a juror no one is favouring or prejudiced against anyone on the basis of their sexual orientation. ⁸⁸ The Crown Court Compendium states within the ‘Homily checklist’ that where it is considered appropriate the judge may wish to address the need for caution around myths and stereotypes. ⁸⁹ Where it is known from the start that evidence of homosexuality needs to be carefully managed this could and should be highlighted at both the beginning and the end of the trial. The wording surrounding treating no one differently may also be a simpler example that is more digestible for a juror, than simply telling them that evidence is not significant.

In the relatively small subset of appellate judgements available post-2003 Act in which evidence of homosexuality is admitted, many of those appeals are successful and the rationale (at least in part) is due to an insufficiently rigorous or complete direction to the jury. Clearly the guidance is not having the intended impact. The issue is not a lack of guidance/suggested wording per se, it is that it just does not seem to be being utilised so far. One wonders whether a direction to the jury should be mandated based upon circumstances, in the same way a Lucas direction is required where a defendant has lied. This might be known as an ‘IJ warning’ or something similar and might be structured in accordance with the existing guidance in IJ and the compendium. The only meaningful way to elevate the status of the direction in the way described would be to enact legislation commanding its provision. England would not be the first jurisdiction to do so – indeed, Scotland addressed issues with jury directions that had persisted within sexual offence cases where there had been a delay in reporting ⁹⁰ or where there had been a lack of force used by or against the complainant of a sexual offence. ⁹¹ The provisions provide what needs to be included without being onerous or unnecessarily prescriptive, for example, ‘In charging the jury, the judge must advise that – there can be good reasons why a person against whom a sexual offence is committed might not physically resist the sexual activity, and … an absence of physical resistance does not, therefore, necessarily indicate that an allegation is false’. ⁹² Unfortunately, this does not appear to be foolproof. Indeed, the case of McDonald v HM Advocate ⁹³ highlights that issues can still persist; the judge in this case having referred to the complainer as ‘victim’ in their jury direction and having failed to provide the necessary s288DB(2) direction. The direction was lacking despite the fact that evidence was elicited that the complainer ‘had not screamed, shouted or scratched the appellant's eyes out’. ⁹⁴

As was recognised by Maxwell and Byrne, ⁹⁵ Victoria is another excellent comparator in this regard as they experienced issues with juror comprehension and compliance with judicial instructions in tandem with jurisdictions in the UK. England elected to remain judge-led in managing this issue. Victoria enacted legislation – the Jury Directions Act 2015. As Maxwell and Byrne highlight, concerns raised when legislation was first debated never materialised, and there have been verifiable benefits to implementing legislation to regulate jury directions. ⁹⁶ Legislation need not collate all directions (and indeed Victoria's does not) and does not equate to prescription of content but instead seems to carry sufficient weight that it increases engagement with and use of the guidance. It is Maxwell and Byrne's contention that this is down to the degree of engagement with judges and practitioners and the evidence-based approach to reform that underpinned the process of undertaking reform in the area. ⁹⁷ This approach has been hailed as a means to reduce the number of successful appeals, ⁹⁸ reduce the opportunity for myths and misconceptions to influence judges/jurors ⁹⁹ and was also shown to have shortened directions as compared to 2006. ¹⁰⁰

It is difficult to predict whether the issues demonstrated would be enough to catalyse statutory reform, given the relatively small number of cases post-CJA 2003 to draw upon in support of such a proposal. What appears clear enough though, are the benefits that might arise were we to do so, and the potential improvements that could be transferable to other problematic categories of evidence.

Conclusion

This article undertook a systematic review of post-CJA 2003 case law considering the admissibility of evidence of defendant homosexuality in cases involving sexual offences against men/boys. We began with the use of powder puffs and makeup as SFE, allegedly providing an indicator of homosexuality and therefore sexual deviance indicative of guilt and a familiarity with ‘tools of the trade’ with respect to sexual offending. The case analysis then revealed a subsequent shift away from the previously accepted links with sexual deviance and abnormal propensity, with a need for more than mere evidence of homosexuality alone and a requirement for a striking or unusual nature to justify admission substituted instead. The reforms in the 2003 Act and the introduction of a consolidated statutory regime for admission caused a seismic shift. A new definition of BCE meant evidence of homosexuality that is not supported by a previous conviction now sits outside of the BCE regime in the CJA 2003. Convictions that demonstrate homosexual activity are still admitted via the CJA 2003. This article thereby identifies a strange and seemingly unforeseen outcome of the BCE admissibility reforms – a distinction that necessitates a statutory approach to admitting conviction based evidence of homosexuality as BCE, whilst any other non-conviction-based homosexual behaviours are dealt with under the common law.

It is excellent to see that the courts are not prepared to house homosexual conduct within the BCE regime by classifying it as reprehensible conduct but concerning to see that this means that such evidence is instead subject to ordinary common law principles for admission that do not carry safeguards tied to use (i.e. gateway). The case analysis undertaken reveals that admission under the common law mirrors the uses to which the evidence would be put under gateways (c), (d) and (f) of the CJA 2003 regime – which makes the lack of bespoke safeguards even more of a concern. Key cases applying the 2003 Act definition seem to suggest that to be admissible as evidence falling outside of the BCE regime (usually to resolve a misleading impression for the jury, or where the evidence is still considered unusual enough) it must be relevant to an issue at trial, not unfair due to prejudice, and be subject to a clear, comprehensive and robust judicial direction to deal with any potential risk of prejudice that may exist. This is underpinned by an assumption that a thorough jury direction will serve as a panacea to prejudice engendered by the inclusion of the defendant's sexual orientation but this is by no means a guarantee. A key facet of the problem here is that the judicial direction (as a safeguard) kicks in much too late and may not be sufficient to alleviate myths and misconceptions/assumptions underpinning likelihood of guilt where the offender is a homosexual male and the complainant an adult male/boy. Sometimes we have seen admission where homosexual conduct is of questionable relevance (see e.g. Laws-Chapman) and whilst the tests are rooted in relevance and an assessment/balance of probative value and prejudicial effect this does not appear to be keeping evidence of homosexual behaviours that has lower probative value and relevance out of sight of a jury. The existing case law points to explanatory/clarifying purposes as being a major theme underpinning admission suggesting that the myth that homosexuality, as a fact in itself, is relevant to a charge of sexual offending seems to have persisted to some degree despite the passage of time and changes in societal attitudes. If the evidence is being admitted nonetheless, and being used to the exact same ends as it would be had it surmounted gateways (c)/(f), then how far have we really come?

The case law also highlights a patchy and inconsistent approach to directing the jury where evidence of homosexuality is admitted in the context identified. This is despite case law identifying very clearly what the ideal format for such a direction should be (see IJ above) and this being mirrors in the Crown Court Compendium. What is needed going forward is legislative reform. This could serve to boost the impact of the judicial direction as a means of managing myths and prejudices by increasing engagement and compliance with the guidance surrounding jury directions. Examples of good practice from Scotland and Victoria demonstrate that this can be achieved to good effect without the need for such legislation to be unnecessarily prescriptive.