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 (8) Does the evidence or question relate to a specific instance or instances? [s.41(6)] (9) Might a refusal of leave have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case? [s.41(2)(b)] (10) Has the correct procedure been followed? Sexual Offence (Step 1) 4. The original s.62 pre-dated the Sexual Offences Act 2003 [“SOA 2003”] and covered offences such as rape or indecent assault. It has been amended by Schedule 26 to the Criminal Justice and Immigration Act 2008 to cover any offence under the SOA 2003, part 1, or any relevant superseded offence. See Archbold or Blackstone for details. 5. Note that the restrictions in s.41 only relate to defence evidence and questions. In R v Soroya [2006] EWCA Crim 1884 it was argued that the lack of a similar bar to the prosecution adducing evidence of previous sexual behaviour breached the right to a fair trial under Article 6 of the ECHR. The Court of Appeal did not need to deal with this argument, but expressed the opinion that s.78 of PACE provided sufficient powers to ensure a fair trial. Sexual Behaviour (Step 2) 6. Sexual behaviour includes sexual experience. It is construed objectively. The Court of Appeal in R v E [2004] EWCA Crim 1313 decided that girls of 4 and 6 could engage in sexual behaviour under the Act, even if they were too young to have any appreciation that what had occurred was sexual. 7. The restrictions may prevent evidence or questions which raise an inference of sexual behaviour, if that is their real purpose. This occurs most frequently in the context of an abortion, especially where the defendant is a family member who gave the complainant advice or assistance about obtaining a lawful abortion. Such evidence or questions are not of themselves about sexual behaviour, but they obviously carry the implication that there has been antecedent sexual behaviour which gave rise to the pregnancy to be terminated. If there is a genuine reason for the evidence or questions, unrelated to the antecedent sexual behaviour, they are not caught by s.41 [R v RP [2013] EWCA Crim 2331]. In many contexts, however, the evidence or questioning may simply be a way of attacking the sexual habits of the complainant, in which case s.41 does apply [R v PK [2008] EWCA Crim 434]. Facebook 8. Facebook is another fruitful source of evidence and questions where the issue arises whether the entries amount to evidence of sexual behaviour. In R v Ben-Rejab [2011] EWCA Crim 1136 the Court of Appeal decided that completing sexual quizzes amounted to sexual behaviour. As Pitchford LJ said:
Western Circuit RASSO Course 28 February 2015 Section 41 YJCE Act 1999 – Philip Mott QC “What motive can there have been when engaging in the activity of answering sexually explicit questions unless it was to obtain sexual pleasure from it?” 9. In R v D [2011] EWCA Crim 2305 the Court of Appeal refused leave to adduce fresh evidence of Facebook entries by the complainant after the rape in which she posed provocatively but clothed. Rafferty LJ said: “The complex mixture of motives which impels people, especially young people, to post messages on such sites includes, the court suspects, the desire to attract attention, admiration from peers and to provoke the interest of others in the person posting the material. We suspect that objective truth and the dissemination of factual evidence comes low on the list. In this instance the complainant’s postings can be summarized as her saying outrageous or provocative things or claiming daring behaviour on her part. There are many entries, for example, boasting about how much she drank and the great hangovers she suffered as a result. In addition, there are claims of interest in sexual matters. These come much later in the postings and are to be found at the time of trial. By the following August she was posting photographs of herself and of herself with other girls. All the pictures are of the girls clothed, but provocatively so, no doubt in a way perceived by her and by them as sexually attractive. Choosing our words with care, they are images not dissimilar in content and presentation to what can be seen travelling many an underground escalator, albeit the model in question here is a girl in her early teens rather than a grown woman. None of the postings lays claim to direct sexual activity on the part of the complainant, though three or four of them indicate that she thinks quite a lot of the time about her own sexuality and indeed about having sexual intercourse.” 10. R v T [2012] EWCA Crim 2358 is a difficult case to follow. T was convicted of raping a 13 year old girl. He sought to adduce in cross-examination of the complainant a photograph of her in a bikini which he claimed she had sent him via Facebook around Valentine’s Day. On a voir dire she denied sending the photograph. The Court of Appeal (Moses LJ, Nicol & Lindblom JJ) adjourned the appeal to allow the prosecution to investigate the provenance of the photograph. If genuine, it was relevant to an issue in the case, namely that she had been interested in him but rejected by him, and thus had a motive to lie, and the judge had no discretion to refuse leave. It was for the jury to decide whether she had sent it as he claimed but she denied. (1) Was this really evidence of “sexual behaviour”, even on the extended definition accepted in R v Ben-Rejab [2011] EWCA Crim 1136? If not, s.41 was not even engaged. (2) It is difficult to see how this related to a relevant issue, i.e. one which had to be proved by prosecution or defence. Why should a photograph of the girl in a bikini,
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Feb-2015-s.41-handout-PMQC

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