Evidence of Bad Character in Criminal ... - Law Commission

only involve the reading down of express language in a statute but
also the implication of provisions. 43
In the same decision, however, Lord Hope held, “I would find it very difficult to
accept that it was permissible under section 3 of the Human Rights Act 1998 to
read in to section 41(3)(c) [of the Youth Justice and Criminal Evidence Act
1999] a provision to the effect that evidence or questioning which was required
to ensure a fair trial under article 6 of the Convention should not be treated as
inadmissible. … the rule [in section 3(1)] is only a rule of interpretation. It does
not entitle the judges to act as legislators.” 44 Lord Hope did not, unlike the other
Law Lords, consider it necessary to have recourse to section 3 for the resolution
of the question before their Lordships.
3.34 Lord Steyn was content to conclude that it is “possible under section 3 to read
section 41 … as subject to the implied provision that evidence or questioning
which is required to ensure a fair trial under article 6 of the Convention should
not be treated as inadmissible”. 45 Lords Clyde, Hutton and Slynn took a similar
line to Lord Steyn, 46 whereas Lord Hope’s conclusion was
In the present case it seems to me that the entire structure of section
41 contradicts the idea that it is possible to read into it a new
provision which would entitle the court to give leave whenever it was
of the opinion that this was required to ensure a fair trial. … Section
41(2) forbids the exercise of such a discretion unless the court is
satisfied as to the matters which that subsection identifies. It seems to
me that it would not be possible, without contradicting the plain
intention of Parliament, to read in a provision which would enable
the court to exercise a wider discretion than that permitted by section
41(2). 47
3.35 Their Lordships all concurred with Lord Steyn, however, in the test to be applied
in the case of this statutory provision:
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 the
complainant 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
43 A [2001] UKHL 25, para [44].
44 A [2001] UKHL 25, para [108]. We note also that the Home Secretary stated before the
enactment of the HRA that it was not the Government’s intention that the courts “should
contort the meaning of words to produce implausible or incredible meanings”: Hansard
(HC) 3 June 1998, vol 313, col 422.
45 A [2001] UKHL 25, para [45].
46 Ibid, paras [136] and [13] respectively.
47 Ibid, para [109].
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