Feb-2015-s.41-handout-PMQC
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Western Circuit RASSO Course 28 <strong>Feb</strong>ruary <strong>2015</strong><br />
Section 41 YJCE Act 1999 – Philip Mott QC<br />
SECTION 41<br />
YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999<br />
Statute<br />
1. Section 41 of the Youth Justice and Criminal Evidence Act 1999 [“YJCEA 1999”]<br />
provides as follows (defined terms emphasised and annotations added in italics in<br />
square brackets):<br />
(1) If at a trial a person is charged with a sexual offence<br />
[defined s.42(1)(d)], then, except with the leave of the court -<br />
(a) no evidence may be adduced, and<br />
(b) no question may be asked in cross-examination,<br />
by or on behalf of any accused at the trial, about any sexual<br />
behaviour [defined s.42(1)(c)] of the complainant.<br />
(2) The court may give leave in relation to any evidence or<br />
question only on an application made by or on behalf of an<br />
accused, and may not give such leave unless it is satisfied –<br />
(a) that subsection (3) or (5) applies, and<br />
(b) that a refusal of leave might have the result of rendering<br />
unsafe a conclusion of the jury or (as the case may be) the<br />
court on any relevant issue in the case [defined s.42(1)(a)].<br />
(3) This subsection applies if the evidence or question relates<br />
to a relevant issue and either –<br />
(a) that issue is not an issue of consent [defined s.42(1)(b)];<br />
or<br />
(b) it is an issue of consent and the sexual behaviour of the<br />
complainant to which the evidence or question relates is<br />
alleged to have taken place at or about the same time as the<br />
event which is the subject matter of the charge against the<br />
accused; or<br />
(c) it is an issue of consent and the sexual behaviour of the<br />
complainant to which the evidence or question relates is<br />
alleged to have been, in any respect, so similar –
Western Circuit RASSO Course 28 <strong>Feb</strong>ruary <strong>2015</strong><br />
Section 41 YJCE Act 1999 – Philip Mott QC<br />
(i) to any sexual behaviour of the complainant which<br />
(according to evidence adduced or to be adduced by or<br />
on behalf of the accused) took place as part of the<br />
event which is the subject matter of the charge against<br />
the accused, or<br />
(ii) to any other sexual behaviour of the complainant<br />
which (according to such evidence) took place at or<br />
about the same time as that event,<br />
that the similarity cannot reasonably be explained as a<br />
coincidence.<br />
(4) For the purposes of subsection (3) no evidence or question<br />
shall be regarded as relating to a relevant issue in the case if it<br />
appears to the court to be reasonable to assume that the purpose<br />
(or main purpose) for which it would be adduced or asked is to<br />
establish or elicit material for impugning the credibility of the<br />
complainant as a witness.<br />
(5) This subsection applies if the evidence or question –<br />
(a) relates to any evidence adduced by the prosecution about<br />
any sexual behaviour of the complainant; and<br />
(b) in the opinion of the court, would go no further than is<br />
necessary to enable the evidence adduced by the prosecution<br />
to be rebutted or explained by or on behalf of the accused.<br />
(6) For the purposes of subsections (3) and (5) the evidence or<br />
question must relate to a specific instance (or specific<br />
instances) of alleged sexual behaviour on the part of the<br />
complainant (and accordingly nothing in those subsections is<br />
capable of applying in relation to the evidence or question to<br />
the extent that it does not so relate).<br />
(7) Where this section applies in relation to a trial by virtue of<br />
the fact that one or more of a number of persons charged in the<br />
proceedings is or are charged with a sexual offence –<br />
(a) it shall cease to apply in relation to the trial if the<br />
prosecutor decides not to proceed with the case against that<br />
person or those persons in respect of that charge; but<br />
(b) it shall not cease to do so in the event of that person or<br />
those persons pleading guilty to, or being convicted of, that<br />
charge.<br />
(8) Nothing in this section authorises any evidence to be<br />
adduced or any question to be asked which cannot be adduced<br />
or asked apart from this section.
Western Circuit RASSO Course 28 <strong>Feb</strong>ruary <strong>2015</strong><br />
Section 41 YJCE Act 1999 – Philip Mott QC<br />
2. Section 42 provides a number of definitions, as follows:<br />
(1) In section 41 –<br />
(a) “relevant issue in the case” means any issue falling to be proved by<br />
the prosecution or defence in the trial of the accused;<br />
(b) “issue of consent” means any issue whether the<br />
complainant in fact consented to the conduct constituting the<br />
offence with which the accused is charged (and accordingly<br />
does not include any issue as to the belief of the accused that<br />
the complainant so consented);<br />
(c) “sexual behaviour” means any sexual behaviour or<br />
other sexual experience, whether or not involving any<br />
accused or other person, but excluding (except in section<br />
41(3)(c)(i) and (5)(a)) anything alleged to have taken place<br />
as part of the event which is the subject matter of the charge<br />
against the accused; and<br />
(d) subject to any order made under subsection (2), “sexual<br />
offence” shall be construed in accordance with section 62.<br />
Checklist<br />
3. Ten steps should be followed in assessing whether leave should be given under <strong>s.41</strong> –<br />
(1) Is D charged with a sexual offence? [<strong>s.41</strong>(1)]<br />
(2) Is the proposed evidence or question “about any sexual behaviour of the<br />
complainant”? [<strong>s.41</strong>(1)]<br />
(3) Does it relate to a relevant issue and that issue is not an issue of consent?<br />
[<strong>s.41</strong>(3)(a)]; OR<br />
(4) Does it relate to a relevant issue and that issue is an issue of consent and the<br />
sexual behaviour is alleged to have taken place at or about the same time as the<br />
event charged? [<strong>s.41</strong>(3)(b)]; OR<br />
(5) Does it relate to a relevant issue and that issue is an issue of consent and the<br />
sexual behaviour alleged is so similar to other sexual behaviour of the<br />
complainant as part of the event charged or at or about the same time as that<br />
event? [<strong>s.41</strong>(3)(c)]<br />
(6) Only if step (4), (5) or (6) applies: Is the main purpose not merely to impugn the<br />
credibility of the complainant as a witness? [<strong>s.41</strong>(4)]<br />
(7) Does it relate to evidence adduced by the prosecution about the sexual behaviour<br />
of the complainant AND would go no further than is necessary to rebut or explain<br />
that evidence? [<strong>s.41</strong>(5)]
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Section 41 YJCE Act 1999 – Philip Mott QC<br />
(8) Does the evidence or question relate to a specific instance or instances? [<strong>s.41</strong>(6)]<br />
(9) Might a refusal of leave have the result of rendering unsafe a conclusion of the<br />
jury on any relevant issue in the case? [<strong>s.41</strong>(2)(b)]<br />
(10) Has the correct procedure been followed?<br />
Sexual Offence (Step 1)<br />
4. The original s.62 pre-dated the Sexual Offences Act 2003 [“SOA 2003”] and covered<br />
offences such as rape or indecent assault. It has been amended by Schedule 26 to the<br />
Criminal Justice and Immigration Act 2008 to cover any offence under the SOA 2003,<br />
part 1, or any relevant superseded offence. See Archbold or Blackstone for details.<br />
5. Note that the restrictions in <strong>s.41</strong> only relate to defence evidence and questions. In R v<br />
Soroya [2006] EWCA Crim 1884 it was argued that the lack of a similar bar to the<br />
prosecution adducing evidence of previous sexual behaviour breached the right to a<br />
fair trial under Article 6 of the ECHR. The Court of Appeal did not need to deal with<br />
this argument, but expressed the opinion that s.78 of PACE provided sufficient<br />
powers to ensure a fair trial.<br />
Sexual Behaviour (Step 2)<br />
6. Sexual behaviour includes sexual experience. It is construed objectively. The Court of<br />
Appeal in R v E [2004] EWCA Crim 1313 decided that girls of 4 and 6 could engage<br />
in sexual behaviour under the Act, even if they were too young to have any<br />
appreciation that what had occurred was sexual.<br />
7. The restrictions may prevent evidence or questions which raise an inference of sexual<br />
behaviour, if that is their real purpose. This occurs most frequently in the context of<br />
an abortion, especially where the defendant is a family member who gave the<br />
complainant advice or assistance about obtaining a lawful abortion. Such evidence or<br />
questions are not of themselves about sexual behaviour, but they obviously carry the<br />
implication that there has been antecedent sexual behaviour which gave rise to the<br />
pregnancy to be terminated. If there is a genuine reason for the evidence or questions,<br />
unrelated to the antecedent sexual behaviour, they are not caught by <strong>s.41</strong> [R v RP<br />
[2013] EWCA Crim 2331]. In many contexts, however, the evidence or questioning<br />
may simply be a way of attacking the sexual habits of the complainant, in which case<br />
<strong>s.41</strong> does apply [R v PK [2008] EWCA Crim 434].<br />
Facebook<br />
8. Facebook is another fruitful source of evidence and questions where the issue arises<br />
whether the entries amount to evidence of sexual behaviour. In R v Ben-Rejab [2011]<br />
EWCA Crim 1136 the Court of Appeal decided that completing sexual quizzes<br />
amounted to sexual behaviour. As Pitchford LJ said:
Western Circuit RASSO Course 28 <strong>Feb</strong>ruary <strong>2015</strong><br />
Section 41 YJCE Act 1999 – Philip Mott QC<br />
“What motive can there have been when engaging in the<br />
activity of answering sexually explicit questions unless it was<br />
to obtain sexual pleasure from it?”<br />
9. In R v D [2011] EWCA Crim 2305 the Court of Appeal refused leave to adduce fresh<br />
evidence of Facebook entries by the complainant after the rape in which she posed<br />
provocatively but clothed. Rafferty LJ said:<br />
“The complex mixture of motives which impels people,<br />
especially young people, to post messages on such sites<br />
includes, the court suspects, the desire to attract attention,<br />
admiration from peers and to provoke the interest of others in<br />
the person posting the material. We suspect that objective truth<br />
and the dissemination of factual evidence comes low on the list.<br />
In this instance the complainant’s postings can be summarized<br />
as her saying outrageous or provocative things or claiming<br />
daring behaviour on her part. There are many entries, for<br />
example, boasting about how much she drank and the great<br />
hangovers she suffered as a result. In addition, there are claims<br />
of interest in sexual matters. These come much later in the<br />
postings and are to be found at the time of trial. By the<br />
following August she was posting photographs of herself and<br />
of herself with other girls. All the pictures are of the girls<br />
clothed, but provocatively so, no doubt in a way perceived by<br />
her and by them as sexually attractive. Choosing our words<br />
with care, they are images not dissimilar in content and<br />
presentation to what can be seen travelling many an<br />
underground escalator, albeit the model in question here is a<br />
girl in her early teens rather than a grown woman. None of the<br />
postings lays claim to direct sexual activity on the part of the<br />
complainant, though three or four of them indicate that she<br />
thinks quite a lot of the time about her own sexuality and<br />
indeed about having sexual intercourse.”<br />
10. R v T [2012] EWCA Crim 2358 is a difficult case to follow. T was convicted of<br />
raping a 13 year old girl. He sought to adduce in cross-examination of the<br />
complainant a photograph of her in a bikini which he claimed she had sent him via<br />
Facebook around Valentine’s Day. On a voir dire she denied sending the photograph.<br />
The Court of Appeal (Moses LJ, Nicol & Lindblom JJ) adjourned the appeal to allow<br />
the prosecution to investigate the provenance of the photograph. If genuine, it was<br />
relevant to an issue in the case, namely that she had been interested in him but<br />
rejected by him, and thus had a motive to lie, and the judge had no discretion to refuse<br />
leave. It was for the jury to decide whether she had sent it as he claimed but she<br />
denied.<br />
(1) Was this really evidence of “sexual behaviour”, even on the extended definition<br />
accepted in R v Ben-Rejab [2011] EWCA Crim 1136? If not, <strong>s.41</strong> was not even<br />
engaged.<br />
(2) It is difficult to see how this related to a relevant issue, i.e. one which had to be<br />
proved by prosecution or defence. Why should a photograph of the girl in a bikini,
Western Circuit RASSO Course 28 <strong>Feb</strong>ruary <strong>2015</strong><br />
Section 41 YJCE Act 1999 – Philip Mott QC<br />
even if sent to the defendant by her, have any relevance to whether she had sexual<br />
intercourse with him in a park 8 months later? In any event, his defence was not<br />
reasonable belief in consent. He denied sexual intercourse.<br />
(3) At best, this was evidence supporting the assertion that this was a false complaint<br />
motivated by malice or rejection. According to R v DB [2012] EWCA Crim 1235<br />
(decided before but not cited to the court in R v T) motive is not a “relevant issue<br />
in the case” as defined by s.42(1)(a) [see paragraph 32 below].<br />
(4) If it was not a “relevant issue in the case”, <strong>s.41</strong>(3) could not apply and the court<br />
could not grant leave [<strong>s.41</strong>(2)(a)].<br />
(5) If it was a relevant issue, it was not an issue of consent, so <strong>s.41</strong>(3)(a) applied.<br />
Leave would have to be granted, but only if a conclusion of the jury on a relevant<br />
issue (such as guilt) might thereby be rendered unsafe [<strong>s.41</strong>(2)(b)].<br />
(6) As to Facebook, the importance of this decision is the acknowledgement that<br />
defendants can readily obtain images and manipulate them, as well as making<br />
false entries on Facebook pages. See also the discussion in Ormerod and O’Floinn<br />
“Social networking material as criminal evidence” [2012] Crim LR 486.<br />
(7) As a footnote, after the adjournment the appeal was later abandoned by the<br />
appellant.<br />
False complaints<br />
11. False complaints are not sexual behaviour. Being false, no sexual behaviour actually<br />
took place as alleged in the complaint. The difficulty is in judging whether there is<br />
sufficient evidence that a complaint was false for it to go to the jury as such.<br />
12. S.41 will of course apply to the reverse situation, where the complainant has falsely<br />
denied a true previous sexual experience.<br />
13. Where the defendant seeks to adduce evidence or ask questions about an allegedly<br />
false complaint, he must seek a ruling from the judge that <strong>s.41</strong> does not apply, and<br />
also provide a proper evidential basis for the allegation [R v T and H [2001] EWCA<br />
Crim 1877].<br />
(1) There must have been an earlier complaint of a sexual nature. In R v Lefeuvre<br />
[2011] EWCA Crim 1253 there were allegedly false complaints about the theft of<br />
a mobile phone on two occasions, once when she woke up to find herself naked,<br />
but neither of these involved a complaint of sexual assault. On another occasion<br />
someone else complained of an assault in her hall of residence, but she made no<br />
complaint. The final incident was a complaint of a stranger entering her flat and<br />
sexually assaulting her, but there was no evidence that this was false. In R v<br />
Callaghan [2012] EWCA Crim 1669 the complainant had accused her former<br />
husband of assaulting her whilst she was asleep, but when he called the police she<br />
refused to make a complaint.<br />
(2) The earlier complaint must have been false. In R v Winter [2008] EWCA Crim 3<br />
the complainant had told the police that she had a close and loving relationship
Western Circuit RASSO Course 28 <strong>Feb</strong>ruary <strong>2015</strong><br />
Section 41 YJCE Act 1999 – Philip Mott QC<br />
with her partner M, but the following day returned to the police station to explain<br />
that she was also involved in an active sexual relationship with another man S.<br />
The Court of Appeal (Longmore LJ, Beatson & Blake JJ) concluded that the first<br />
statement that she was devoted to M was not a lie merely because she had a sexual<br />
relationship with S, but even if it was a lie it was short-lived and insignificant.<br />
(3) There must be a proper evidential basis for the allegation of falsity. The test is<br />
whether falsity is a reasonable inference to draw, no higher than that [R v E [2005]<br />
Crim LR 227]. The defence advocate cannot seek leave on the basis that the<br />
evidence will come from questioning the complainant, in the hope of showing that<br />
the complaint was false [R v Abdelrahhman [2005] EWCA Crim 1367]. Mere<br />
inconsistencies are not enough, nor is the fact that the police or CPS decided that<br />
there was insufficient evidence to prosecute [R v RD [2009] EWCA Crim 2137].<br />
(4) Lack of cooperation with the police may provide a proper evidential basis for the<br />
allegation of falsity, if the circumstances are stark enough. R v Garaxo [2005]<br />
EWCA Crim 1170 is the high point from a defendant’s viewpoint, and was said in<br />
R v V [2006] EWCA Crim 1901 to have been decided on particular facts. R v AM<br />
[2009] EWCA Crim 618 is the best guide, concerning a case where an allegation<br />
of rape was made only after a housing officer told the complainant that it would<br />
not assist her to be moved unless she reported it to the police. She told the police<br />
that she was only reporting the incident to get rehoused, she did not want it<br />
investigated or taken further, and she would not support a prosecution or attend<br />
court. She said this was because she was scared of repercussions. The Court of<br />
Appeal stressed that such decisions are fact-sensitive, but “the relevant question is<br />
whether that material is capable of leading to a conclusion that the previous<br />
complaint was false”. In that case it was. In R v Hilly [2014] EWCA Crim 1614<br />
even four separate unpursued allegations of sexual abuse against four different<br />
men was insufficient to raise an inference that they were false.<br />
(5) A previous failed prosecution does not provide evidence of falsity. All it means is<br />
that the Crown did not satisfy the criminal burden and standard of proof [R v BD<br />
[2007] EWCA Crim 4; R v Davarifar [2009] EWCA Crim 2294].<br />
(6) The allegation will also be one of bad character, so the provisions of s.100 of the<br />
Criminal Justice Act 2003 will apply.<br />
(7) Care must be taken to ensure that questioning does not become protracted and lead<br />
to the exploration of irrelevant material [R v Lee B [2005] EWCA Crim 3146].<br />
The procedural requirements and powers should be used to prevent this [see<br />
below]<br />
Issue of Consent (Steps 3, 4, 5 & 6)<br />
Not an issue of consent (Step 3)<br />
14. Reasonable belief in consent is not an issue of consent [s.42(1)(b)]. Such a belief must<br />
have existed at the time of the alleged offence. Unless the defendant knew about the<br />
sexual behaviour of the complainant at that time, it is irrelevant to his state of mind.
Western Circuit RASSO Course 28 <strong>Feb</strong>ruary <strong>2015</strong><br />
Section 41 YJCE Act 1999 – Philip Mott QC<br />
15. Note the impact of the SOA 2003, which now requires such a belief to be reasonable,<br />
as well as honestly held (which was the test at the time <strong>s.41</strong> was passed). Honest<br />
belief and reasonable belief are very different things. In R v Bahador [2005] EWCA<br />
Crim 396 the defendant sought to rely on the fact that the complainant had performed<br />
at a club when she bared her breast and simulated oral sex with a man. That could not<br />
reasonably have caused him to believe that she would consent to intercourse with him<br />
after she left the club. In R v Harrison [2006] EWCA Crim 1543 the defendant was<br />
rightly excluded from asking about the complainant having consensual sex with<br />
another man she had met with the defendant in a club and gone with to a house. Three<br />
hours later the complainant woke up to find the defendant digitally penetrating her.<br />
The earlier consensual intercourse with another man could not have given rise to a<br />
reasonable belief that she would consent to his actions whilst she was asleep.<br />
16. An allegation that the complainant is motivated by malice is not an issue of consent.<br />
Thus evidence of a later consensual relationship with the defendant which led to a<br />
desire for revenge would be both relevant and admissible [R v F [2005] 2 Cr App R<br />
13].<br />
17. An allegation that a young complainant’s detailed account could have come from<br />
other sexual experiences is not an issue of consent. Realistically, it should only arise<br />
with very young complainants, where the prosecution case is that the allegations must<br />
be true by reason of a level of detail not to be expected from the imagination of<br />
someone of that age. It does not arise where a 14 year old gives evidence of<br />
masturbation and normal sexual conduct, as it is “almost inevitable” that such<br />
information would be known by that age [R v MF [2005] EWCA Crim 3376].<br />
At or about the same time (Step 4)<br />
18. The window of time is likely to be fairly limited, as a complainant’s responses will<br />
vary from occasion to occasion. Consent is not given once and for all time. Equally,<br />
behaviour with others is unlikely to be relevant and therefore admissible. Such<br />
decisions will be fact-sensitive.<br />
19. R v Mukadi [2004] Crim LR 373 is a difficult case. The Court of Appeal (Mantell LJ,<br />
Sir Edwin Jowett & Recorder of Manchester) decided that cross-examination should<br />
have been allowed about an incident earlier in the same day when the complainant<br />
climbed into an expensive car with an older man in Oxford Street, drove to a filling<br />
station with him and exchanged phone numbers, because this might have led to the<br />
inference that she anticipated that some sexual activity would follow. Quite how this<br />
could have been relevant to the issue of consent to intercourse with a different man<br />
several hours later, after which she jumped out of a window breaking two wrists and a<br />
kneecap, is puzzling! As Professor Di Birch said in the Criminal Law Review<br />
commentary [2004] Crim LR 373:<br />
“… the suggestion may have been that the complainant’s<br />
demeanour was consistent with prostitution – the emphasis on<br />
her dress, the dirty interior of the car (mine would not have<br />
passed muster with the Court of Appeal either, I fear) and the<br />
age of its solitary occupant, together with the business of the<br />
exchange of numbers at the filling station, suggest that this was<br />
no ordinary romantic encounter. But in the absence of any clear
Western Circuit RASSO Course 28 <strong>Feb</strong>ruary <strong>2015</strong><br />
Section 41 YJCE Act 1999 – Philip Mott QC<br />
evidence it would seem improper to draw such an inference and<br />
then to apply it laterally to the complainant’s relationship with<br />
M, who does not appear to have been suggesting that the<br />
relationship was a commercial one.<br />
What is not permissible is for evidence to be adduced on the<br />
basis of ostensible relevance to consent when the real purpose<br />
is to discredit the complainant: <strong>s.41</strong>(4) expressly forbids this<br />
tactic. The reasoning employed in the present case appears to<br />
draw on a dangerous generalisation about consent as an attitude<br />
of mind rather than a choice made on an individualised,<br />
perhaps even capricious, basis. To the extent that the real<br />
purpose might have been, as the trial judge clearly suspected, to<br />
discredit the complainant, the evidence was doubly damned.”<br />
It is now generally accepted to be a ‘rogue’ decision.<br />
So similar (Step 5)<br />
20. The similarity must be particular and unusual. Going to the same hotel as one visited<br />
previously for a one night stand is not enough [R v X [2005] EWCA Crim 2995].<br />
21. In R v Harris [2009] EWCA Crim 434 the defendant was a homeless man picked up<br />
by the complainant and taken back to her flat where they got drunk together. She<br />
alleged that he detained her there by threats, assaulted and raped her. Medical records<br />
showed that she had a history of casual sex with illegal taxi drivers, drinking alcohol<br />
excessively and engaging in risky sexual liaisons. She described a wish to punish<br />
herself. She said the notes misrepresented the history she had given medical staff. The<br />
defendant was not allowed to adduce this evidence, as it was tantamount to saying<br />
that the complainant was a person who had engaged in casual sex in the past and<br />
therefore would have been likely to do so with the defendant. The Court of Appeal<br />
upheld this decision as being one open to the judge as the primary decision maker.<br />
22. One example of sufficient similarity is R v T [2004] 2 Cr App R 551. Both the event<br />
charged and the previous incident involved having sex inside a metal climbing frame<br />
in a children’s playground in a rather specific sexual position. The trial judge refused<br />
the application for leave, but the Court of Appeal allowed the appeal. The previous<br />
incident was 3-4 weeks earlier, but the Court of Appeal said it was probable that there<br />
was no requirement that the temporal link should be particularly close. In any event,<br />
the application should have been dealt with under <strong>s.41</strong>(3)(c)(i), not <strong>s.41</strong>(3)(c)(ii), so<br />
that the temporal requirement did not apply.<br />
23. Note that the similarity is to be judged “according to the evidence adduced or to be<br />
adduced by or on behalf of the accused” [<strong>s.41</strong>(3)(c)(i)]. Even if there is no<br />
independent evidence in support it should be assumed to be true for the purpose of<br />
granting or refusing leave. It is for the jury to assess whether or not it is or may be<br />
true, and what weight to give to the evidence.
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Section 41 YJCE Act 1999 – Philip Mott QC<br />
Impugning credibility (Step 6)<br />
24. Evidence or questions, even if satisfying one of the gateways in <strong>s.41</strong>(3), must be<br />
excluded if the purpose (or main purpose) is to impugn the credibility of the<br />
complainant [<strong>s.41</strong>(4)]. In R v Martin [2004] EWCA Crim 916 the Court of Appeal<br />
concluded that cross-examination should have been allowed where impugning the<br />
credibility of the complainant was a purpose, but only one of the purposes. The<br />
incident had occurred a few days earlier when the defendant had stayed the night at<br />
the complainant’s flat and claimed that he had rejected her advances. It was enough<br />
that the questioning would strengthen the defendant’s case and enhance his own<br />
credibility.<br />
25. Evidence which seeks to demonstrate a malicious motive falls within the gateway in<br />
<strong>s.41</strong>(3)(a), but will always involve an attack on the complainant’s credibility. In R v F<br />
[2005] 2 CR App R 13 this was acknowledged, but for the purposes of <strong>s.41</strong>(4) it did<br />
not necessarily follow that it was the main purpose of the evidence or questions.<br />
Evidence adduced by the prosecution (Step 7)<br />
26. S.41(5) only applies if the evidence is adduced by the prosecution. As a result:<br />
(1) It does not assist the defendant if it is in a complainant’s statement or ABE<br />
interview but not introduced in evidence in chief.<br />
(2) It does not assist the defendant if the evidence is given in answer to questions in<br />
cross-examination. But the Court of Appeal in R v Hamadi [2007] EWCA Crim<br />
3048 indicated that the provision might have to be read more broadly to allow the<br />
defendant to rebut evidence given by a complainant in cross-examination where it<br />
was not deliberately elicited by defence counsel and the evidence was potentially<br />
damaging to the defence case.<br />
27. There have been concerns expressed about the imbalance between prosecution and<br />
defence, and its effect on the fairness of the trial process. The Court of Appeal has<br />
suggested in R v Soroya [2006] EWCA Crim 1884 that this can be dealt with by using<br />
the judge’s powers under s.78 of PACE.<br />
28. There have also been concerns expressed because a defendant may have no evidence<br />
to rebut such evidence adduced by the Crown, and no ability to find such evidence.<br />
The eliciting of positive evidence by the Crown will give rise to a heavy burden of<br />
disclosure in relation to the complainant’s sexual history, and may well dissuade most<br />
prosecutors from using the unrestricted power to do so.<br />
Specific instances (Step 8)<br />
29. S.41(6) prevents the defendant adducing general evidence of reputation, or asking<br />
questions which are not directed to specific instances of sexual behaviour.
Western Circuit RASSO Course 28 <strong>Feb</strong>ruary <strong>2015</strong><br />
Section 41 YJCE Act 1999 – Philip Mott QC<br />
30. Likewise, questions about sexual orientation will usually be disallowed. It is no more<br />
likely that a homosexual man would have consented to sexual activity with a man<br />
with whom he was not in a relationship, just because he was homosexual, than that a<br />
heterosexual woman would consent to sex with a previously unknown man, just<br />
because she was heterosexual.<br />
Rendering unsafe a conclusion of the jury (Step 9)<br />
31. S.41(2) provides a final hurdle. Before leave is granted, the judge must be satisfied<br />
that to refuse it might render unsafe a conclusion of the jury on a relevant issue in the<br />
case. Since “relevant issue in the case” is defined by s.42(1)(a) as limited to an issue<br />
to be proved by prosecution or defence, it is likely to exclude evidence of motive.<br />
32. In R v DB [2012] EWCA Crim 1235 the complainant had run away from home and<br />
complained to police that her father had raped her throughout her childhood. The<br />
defendant was refused leave to cross-examine her about her alleged relationship with<br />
a much older man. This might have provided a motive for her running away from<br />
home, but not for making up allegations against her father. The Court of Appeal<br />
thought it “highly questionable whether an issue of motive can be said to constitute an<br />
issue in the case as defined in section 42(1)(a)”. Contrast this with R v T [2012]<br />
EWCA Crim 2358 [see paragraph 10 above].<br />
Procedure (Step 10)<br />
33. Part 36 of the Criminal Procedure Rules applies. It requires an application in writing<br />
which must –<br />
(1) Identify the issue to which the defendant says the complainant’s sexual behaviour<br />
is relevant;<br />
(2) Give particulars of –<br />
i) Any evidence that the defendant wants to introduce, and<br />
ii)<br />
Any questions that the defendant wants to ask;<br />
(3) Identify the exception to the prohibition in section 41 of the Youth Justice and<br />
Criminal Evidence Act 1999 on which the defendant relies; and<br />
(4) Give the name and date of birth of any witness whose evidence about the<br />
complainant’s sexual behaviour the defendant wants to introduce.<br />
34. These are very useful powers, which will allow a judge to be clear about the nature<br />
and relevance of the application, and to deliver a ruling which covers all the points<br />
raised. They also allow a judge to require a list of questions, and to allow some but<br />
disallow others, thus ensuring that any questioning about previous sexual behaviour is<br />
limited and not oppressive. Judges are encouraged to insist on this, even when an<br />
application is made late and the notice has to be handwritten.
Western Circuit RASSO Course 28 <strong>Feb</strong>ruary <strong>2015</strong><br />
Section 41 YJCE Act 1999 – Philip Mott QC<br />
35. However, failure to follow the procedure in the Rules does not give the judge a<br />
discretion to exclude evidence or questions which must be allowed under <strong>s.41</strong>. The<br />
judge could only adjourn to allow the rules to be complied with and the prosecution to<br />
make enquiries, as in R v T [2012] EWCA Crim 2358.<br />
Philip Mott QC<br />
28 <strong>Feb</strong>ruary <strong>2015</strong>