Feb-2015-s.41-handout-PMQC

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Western Circuit RASSO Course 28 February 2015 Section 41 YJCE Act 1999 – Philip Mott QC Impugning credibility (Step 6) 24. Evidence or questions, even if satisfying one of the gateways in s.41(3), must be excluded if the purpose (or main purpose) is to impugn the credibility of the complainant [s.41(4)]. In R v Martin [2004] EWCA Crim 916 the Court of Appeal concluded that cross-examination should have been allowed where impugning the credibility of the complainant was a purpose, but only one of the purposes. The incident had occurred a few days earlier when the defendant had stayed the night at the complainant’s flat and claimed that he had rejected her advances. It was enough that the questioning would strengthen the defendant’s case and enhance his own credibility. 25. Evidence which seeks to demonstrate a malicious motive falls within the gateway in s.41(3)(a), but will always involve an attack on the complainant’s credibility. In R v F [2005] 2 CR App R 13 this was acknowledged, but for the purposes of s.41(4) it did not necessarily follow that it was the main purpose of the evidence or questions. Evidence adduced by the prosecution (Step 7) 26. S.41(5) only applies if the evidence is adduced by the prosecution. As a result: (1) It does not assist the defendant if it is in a complainant’s statement or ABE interview but not introduced in evidence in chief. (2) It does not assist the defendant if the evidence is given in answer to questions in cross-examination. But the Court of Appeal in R v Hamadi [2007] EWCA Crim 3048 indicated that the provision might have to be read more broadly to allow the defendant to rebut evidence given by a complainant in cross-examination where it was not deliberately elicited by defence counsel and the evidence was potentially damaging to the defence case. 27. There have been concerns expressed about the imbalance between prosecution and defence, and its effect on the fairness of the trial process. The Court of Appeal has suggested in R v Soroya [2006] EWCA Crim 1884 that this can be dealt with by using the judge’s powers under s.78 of PACE. 28. There have also been concerns expressed because a defendant may have no evidence to rebut such evidence adduced by the Crown, and no ability to find such evidence. The eliciting of positive evidence by the Crown will give rise to a heavy burden of disclosure in relation to the complainant’s sexual history, and may well dissuade most prosecutors from using the unrestricted power to do so. Specific instances (Step 8) 29. S.41(6) prevents the defendant adducing general evidence of reputation, or asking questions which are not directed to specific instances of sexual behaviour.
Western Circuit RASSO Course 28 February 2015 Section 41 YJCE Act 1999 – Philip Mott QC 30. Likewise, questions about sexual orientation will usually be disallowed. It is no more likely that a homosexual man would have consented to sexual activity with a man with whom he was not in a relationship, just because he was homosexual, than that a heterosexual woman would consent to sex with a previously unknown man, just because she was heterosexual. Rendering unsafe a conclusion of the jury (Step 9) 31. S.41(2) provides a final hurdle. Before leave is granted, the judge must be satisfied that to refuse it might render unsafe a conclusion of the jury on a relevant issue in the case. Since “relevant issue in the case” is defined by s.42(1)(a) as limited to an issue to be proved by prosecution or defence, it is likely to exclude evidence of motive. 32. In R v DB [2012] EWCA Crim 1235 the complainant had run away from home and complained to police that her father had raped her throughout her childhood. The defendant was refused leave to cross-examine her about her alleged relationship with a much older man. This might have provided a motive for her running away from home, but not for making up allegations against her father. The Court of Appeal thought it “highly questionable whether an issue of motive can be said to constitute an issue in the case as defined in section 42(1)(a)”. Contrast this with R v T [2012] EWCA Crim 2358 [see paragraph 10 above]. Procedure (Step 10) 33. Part 36 of the Criminal Procedure Rules applies. It requires an application in writing which must – (1) Identify the issue to which the defendant says the complainant’s sexual behaviour is relevant; (2) Give particulars of – i) Any evidence that the defendant wants to introduce, and ii) Any questions that the defendant wants to ask; (3) Identify the exception to the prohibition in section 41 of the Youth Justice and Criminal Evidence Act 1999 on which the defendant relies; and (4) Give the name and date of birth of any witness whose evidence about the complainant’s sexual behaviour the defendant wants to introduce. 34. These are very useful powers, which will allow a judge to be clear about the nature and relevance of the application, and to deliver a ruling which covers all the points raised. They also allow a judge to require a list of questions, and to allow some but disallow others, thus ensuring that any questioning about previous sexual behaviour is limited and not oppressive. Judges are encouraged to insist on this, even when an application is made late and the notice has to be handwritten.
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Feb-2015-s.41-handout-PMQC

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