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Rape and Sexual Offences:
Chapter 4: Section 41 Youth Justice and Criminal Evidence Act 1999

Contents:

Section 41

Section 41 of the Youth Justice and Criminal Evidence Act 1999 protects complainants in proceedings involving sexual offences by restricting evidence or questions about their previous sexual history, subject to exceptions.

Section 41 provides a structured approach to the application of judicial discretion and sets out clearly when evidence of previous sexual history can be admitted in rape cases. In essence courts may only give leave if:

  • The evidence or questions rebut evidence led by the prosecution or
  • The evidence or questions relate to a relevant issue at trial and that issue is not one of consent.

If the issue is one of consent, the behaviour to which they relate is either alleged to have taken place at or about the same time as the alleged offence or is so similar to the complainant's behaviour at that time that it cannot reasonably be explained as coincidence.

The court must also be satisfied that to refuse leave would result in the jury or the court reaching an unsafe conclusion on a relevant issue of trial. The court will also refuse permission if it considers that the main aim of evidence claimed to relate to a relevant issue is simply to undermine the complainant's reliability.

Part 36 of the Criminal Procedure Rules sets out the process to be followed when seeking to introduce evidence of the complainant's sexual history. It is crucial that the rules, which contain strict time limits, are adhered to. The defence must make an application which should be carefully considered by the prosecution and a full and proper reply formulated, setting out the objections to the defendant's application. Each and every point must be answered separately. Experience shows that judges are likely to refuse the defence application, particularly if the prosecution have been robust in dealing with the points raised. However, if the parties are married or in a relationship or in a former relationship then it is more likely that the previous history will be admitted.

Procedurally, an application for leave should be heard in private and in the absence of the complainant but where an application has been determined the court must state in open court in the absence of the jury, its reasons for giving or refusing leave and if it gives leave the extent to which evidence may be adduced or questioned. It must also set out the questions which may be asked. The court may also request a party to the proceedings to provide information to assist it in determining an application.

The defence application must be received within 28 days of the committal or service of papers. It must contain a summary of the evidence it is proposed to adduce and a full explanation of the reasons why it is considered that the evidence falls within section 41(3) or (5). The Prosecution must reply at least 14 days prior to the trial.

Two cases are of particular importance: R v A (No.2) [2002] 1 A.C. 45, which gives guidance at to when an application is likely to be successful and more recently R v F [2005] 2 Cr.App.R. 13, CA, which states that once an application is successful, the court cannot limit the extent to which evidence, property admitted, can be excluded. Counsel must robustly represent the Prosecution's position and must not simply leave the matter to the judge.

It is for the judge to ensure a fair trial not only for the victim but also for the defendant and to allow the defence to pursue all reasonable lines of cross-examination of the witnesses. Defence counsel should not ask of the victim inappropriate questions nor keep repeating the same questions. Nor should he or she be unnecessarily aggressive with the witness. It is recognised that there is a need for a fair trial and that the victim may have to be asked some potentially embarrassing questions.

In R v A the House of Lords had to consider whether the restrictions placed on the defendant by section 41 were incompatible with the right to a fair trial as guaranteed by article 6 of the European Convention on Human Rights(ECHR). It was held that section 41 should be read as being subject to the implied provision that evidence or questioning which is required to ensure a fair trial under article 6 should not be treated as inadmissible; whether any particular episode of previous consensual experience should be admissible should be left to the judgement of trial judges. 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.

Four examples were given of issues which might fall within section 41(3)(a) which appeared to be of more practical value than the test in relation to section 41(3)(c) and the four examples were:

  • honest belief in consent
  • the complainant was biased against the accused or had a motive to fabricate the evidence
  • there was an alternative explanation for the physical conditions on which the prosecution relied to establish that sexual intercourse took place; and 
  • (especially applicable in the case of young complainants), that the detail of their account from some other sexual activity which provides an explanation for their knowledge of that activity.

Nothing in the 'bad character' provisions of section 112(3) of the Criminal Justice Act 2003 affects the exclusion of evidence under Section 41. However, R v V CA [2006] EWCA Crim. 1901 states that where it is sought to cross-examine a complainant about a previous sexual allegation and to suggest that the allegation had been false, it may be necessary to obtain leave under both section 41 and section 100 of the Criminal Justice Act 2003.

In many cases the ruling under section 41 will be the more formidable obstacle. Where there was sufficient evidential basis for asserting that the previous allegation was untrue, questioning as to the incident, would not be as to sexual behaviour for the purpose of section 41 and the test for leave under section 100 of the Criminal Justice Act 2003 Act would be passed. Where in cross-examination thereafter the complainant denied having previously admitted that a prior complaint had been false, it would be open to the defence to call evidence of such admission having been made, and once cross-examination of the previous complaint was admitted under the 2003 Act, the denied statement would be one "relative to the subject matter of the indictment".

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