Law of Evidence (Law 249) Assessed Coursework (Q1) Naveed Ahmed
"It seems that memories are short. Despite its manifest failings, there is now a certain nostalgia for s.2 of the Sexual Offences (Amendment) Act 1976 whilst vitriol is reserved for ss.41-43 of the Youth and Criminal Evidence Act 1999." 1
The question of whether there should be some, and if so what restriction on the scope of the cross-examination regarding sexual behaviour on the part of the complainant in trials involving allegations of a sexual offence has occasioned great difficulty for the law of evidence.2 Precipitated by the need to strike a balance between the interests of the accused to adduce relevant evidence which legitimately supports the defence on the facts and evidence which can only be regarded as an attempt to discredit the complainant the development of the law has been both complex and controversial.3 At common law, the complainant in a rape offence could be cross-examined about her sexual history if the questions were directly relevant to a fact in issue such as consent or the identity of the perpetrator.4 In contrast to this evidence relating to the complainant's sexual history on other occasions or with persons other than the accused was considered as a collateral issue which was relevant to the complainant's credibility as a witness the corollary of which was that it was subject to the finality rule.5 As the line between credibility and issue became increasingly blurred a number of exceptions developed to this general rule whereby answers given by the complainant to questions about her previous sexual conduct did not fall within the finality rule. Consequently, the defence was permitted to put evidence before the court to rebut the complainants answer so for instance the complainant could be cross examined in relation to other acts of intercourse with the accused himself even if the complainant denied them.6 Taken from this vista the operation of the common law rules proved to be unsatisfactory as in many cases the complainants actions and character became the overriding issue at trial rather than the culpability of the defendant's behaviour.7 The force of this criticism persuaded legislatures in all common law jurisdictions to enact "rape shield" statutes to protect complainants from questions and evidence about their previous sexual conduct.8 In England and Wales the first such provision was section 2 of the Sexual Offences (Amendment Act) 1976 and more recently this has been replaced by s. 41 of the Youth Justice and Criminal Evidence Act 1999. This paper will move on to consider in detail the effectiveness of both provisions in regulating the use of sexual history evidence. It will argue that whilst section 2 was considered to be wholly unsatisfactory as it allowed too broad a judicial discretion to admit sexual history evidence its replacement section 41 YJCEA which imposes a general ban on the use of sexual history evidence is considered to be inherently restrictive and has the potential to conflict with article 6 of the European Convention on Human Rights.9
. Section 2 of the Sexual Offences (Amendment) Act 1976:
Since 1976, statute has regulated the circumstances under which evidence of a complainants sexual history is admissible in rape trials. It is correct to suggest that the development of section 2 of the Sexual Offences (Amendment) Act 1976 was initiated by the work of the Heilbron Committee.10 The Committee concluded that complainants were made to suffer a considerable ordeal and one of the worst aspects of this was the routine delving into their private lives, personal habits and sexual history.11 Section 2 (1) establishes that "no evidence and no question in cross examination shall be adduced or asked, by or on behalf of any accused at the trial, about any sexual experience of a complainant with a person other than the accused." Thus, the common law would continue to govern questions that could be asked in cross examination about the sexual behaviour between the accused and the complainant the new provision would only deal with the sexual history between the complainant and others. Section 2 (2) explicates that such leave would only be provided if the judge was satisfied that it would be unfair to the defendant to refuse to allow the question or the evidence to be adduced. According to Ellison "this in itself provides a perfectly acceptable formula for holding the difficult balance between the competing interests of the complainant and the accused, an issue which has manifested as a problem throughout the common law world as well as with some inquisitorial systems."12 Geddes has delineated many if not most judges believe that the restrictions placed under section 2 on the introduction of evidence of the complainant's sexual behaviour in rape trials worked well and pointed in particularly to the flexibility given by section 2 (2).13 In addition to this Elliot has argued that the most that could be done to prevent the illegitimate use of prior sexual history evidence was to give the judge the power to disallow this tactic, going further than this would risk causing injustice to the accused.14 Accordingly, in 1984 the Criminal Law Revision Committee elucidated that it found no reason to believe that the Act was being disregarded and to the contrary argued vehemently that the provision was working well.15
Despite this praise an examination of the case law and empirical research emanating from the application of section 2 would seem to delineate a different picture. Section 2 and similar provisions introduced elsewhere16 which leave the control of sexual history evidence in the hands of judges on the basis of their own assessments of relevance or fairness or probative value, are considered to have widely failed in their objectives.17 From the onset it is was argued that the scope of section 2 was too limited as it only applied where the defendant was charged with a rape offence and did not extend to other offences which might involve the use of sexual history evidence for example indecent assault.18 In addition to this with the section limiting cross-examination to the complainant's sexual experience with a third party and not with the accused, issues that were marginally relevant to deciding the guilt of the accused and placed undue emphasis on the issue of the complainants credibility were frequently raised. For instance in R v Brown (Milton)19 the defendant subjected the two complainants to "repetitious and irrelevant questions designed to intimidate and humiliate them." Perhaps the most stringent criticism related to the fact that "since it was judges who had contributed to the situation in which sexual history evidence was freely used in rape trials, it scarcely made sense to leave it to them to decide whether and when to exclude it."20 McColgan has argued that the body of appellate decisions on the application of section 2 suggests that the refusal to admit evidence of the complainant's sexual history will frequently result in a successful appeal.21 Thus, section 2 although designed to narrow the common law scope for the introduction of sexual history evidence has been interpreted to widen the circumstances in which such evidence may be introduced.22 This criticism is reflected in the case law and is a direct consequence of the failure of section 2 to give guidance on the application of the "fairness" condition for leave to use sexual history evidence. In R v Viola 23 in deciding whether cross examination should be allowed under section 2 it was emphasised that "if the questions are relevant to an issue in the trial in the light of the way the case is being run, for instance relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted."24 This marked a significant departure from the common laws previous categorisation of sexual history evidence as generally irrelevant to the issue of consent.25 More importantly what was lacking from in R v Viola was any discussion as to the degree of relevance needed to qualify for admissibility in this context.26 Consequently, in most cases defence counsel argued that the sexual history evidence in question was relevant to consent and such applications were "often made in very general terms on the basis that lack of consent could only be determined if a good deal was known about the complainant's proclivities."27 Temkin28 has identified three controversial issues which were consistently held to be relevant in determining consent and thus cross examination was permitted on those issues namely promiscuity,29 virginity30 and supportive assertions made by the complainant.31 From this perspective it is evident particularly where the issue of consent was concerned, sexual history evidence of a dubious nature which had the purpose of attacking the complainant's credibility continued to be admitted in many cases.32 This was reaffirmed by a study conducted by Temkin which invoked in depth interviews with ten barristers who were experienced in prosecuting and defending in rape trials revealed that discrediting of complainants was a important strategy in rape trials.33 For instance one barrister espoused that "defendants often want you to dig up every piece of smut there is about the complainant."34
"It seems that memories are short. Despite its manifest failings, there is now a certain nostalgia for s.2 of the Sexual Offences (Amendment) Act 1976 whilst vitriol is reserved for ss.41-43 of the Youth and Criminal Evidence Act 1999." 1
The question of whether there should be some, and if so what restriction on the scope of the cross-examination regarding sexual behaviour on the part of the complainant in trials involving allegations of a sexual offence has occasioned great difficulty for the law of evidence.2 Precipitated by the need to strike a balance between the interests of the accused to adduce relevant evidence which legitimately supports the defence on the facts and evidence which can only be regarded as an attempt to discredit the complainant the development of the law has been both complex and controversial.3 At common law, the complainant in a rape offence could be cross-examined about her sexual history if the questions were directly relevant to a fact in issue such as consent or the identity of the perpetrator.4 In contrast to this evidence relating to the complainant's sexual history on other occasions or with persons other than the accused was considered as a collateral issue which was relevant to the complainant's credibility as a witness the corollary of which was that it was subject to the finality rule.5 As the line between credibility and issue became increasingly blurred a number of exceptions developed to this general rule whereby answers given by the complainant to questions about her previous sexual conduct did not fall within the finality rule. Consequently, the defence was permitted to put evidence before the court to rebut the complainants answer so for instance the complainant could be cross examined in relation to other acts of intercourse with the accused himself even if the complainant denied them.6 Taken from this vista the operation of the common law rules proved to be unsatisfactory as in many cases the complainants actions and character became the overriding issue at trial rather than the culpability of the defendant's behaviour.7 The force of this criticism persuaded legislatures in all common law jurisdictions to enact "rape shield" statutes to protect complainants from questions and evidence about their previous sexual conduct.8 In England and Wales the first such provision was section 2 of the Sexual Offences (Amendment Act) 1976 and more recently this has been replaced by s. 41 of the Youth Justice and Criminal Evidence Act 1999. This paper will move on to consider in detail the effectiveness of both provisions in regulating the use of sexual history evidence. It will argue that whilst section 2 was considered to be wholly unsatisfactory as it allowed too broad a judicial discretion to admit sexual history evidence its replacement section 41 YJCEA which imposes a general ban on the use of sexual history evidence is considered to be inherently restrictive and has the potential to conflict with article 6 of the European Convention on Human Rights.9
. Section 2 of the Sexual Offences (Amendment) Act 1976:
Since 1976, statute has regulated the circumstances under which evidence of a complainants sexual history is admissible in rape trials. It is correct to suggest that the development of section 2 of the Sexual Offences (Amendment) Act 1976 was initiated by the work of the Heilbron Committee.10 The Committee concluded that complainants were made to suffer a considerable ordeal and one of the worst aspects of this was the routine delving into their private lives, personal habits and sexual history.11 Section 2 (1) establishes that "no evidence and no question in cross examination shall be adduced or asked, by or on behalf of any accused at the trial, about any sexual experience of a complainant with a person other than the accused." Thus, the common law would continue to govern questions that could be asked in cross examination about the sexual behaviour between the accused and the complainant the new provision would only deal with the sexual history between the complainant and others. Section 2 (2) explicates that such leave would only be provided if the judge was satisfied that it would be unfair to the defendant to refuse to allow the question or the evidence to be adduced. According to Ellison "this in itself provides a perfectly acceptable formula for holding the difficult balance between the competing interests of the complainant and the accused, an issue which has manifested as a problem throughout the common law world as well as with some inquisitorial systems."12 Geddes has delineated many if not most judges believe that the restrictions placed under section 2 on the introduction of evidence of the complainant's sexual behaviour in rape trials worked well and pointed in particularly to the flexibility given by section 2 (2).13 In addition to this Elliot has argued that the most that could be done to prevent the illegitimate use of prior sexual history evidence was to give the judge the power to disallow this tactic, going further than this would risk causing injustice to the accused.14 Accordingly, in 1984 the Criminal Law Revision Committee elucidated that it found no reason to believe that the Act was being disregarded and to the contrary argued vehemently that the provision was working well.15
Despite this praise an examination of the case law and empirical research emanating from the application of section 2 would seem to delineate a different picture. Section 2 and similar provisions introduced elsewhere16 which leave the control of sexual history evidence in the hands of judges on the basis of their own assessments of relevance or fairness or probative value, are considered to have widely failed in their objectives.17 From the onset it is was argued that the scope of section 2 was too limited as it only applied where the defendant was charged with a rape offence and did not extend to other offences which might involve the use of sexual history evidence for example indecent assault.18 In addition to this with the section limiting cross-examination to the complainant's sexual experience with a third party and not with the accused, issues that were marginally relevant to deciding the guilt of the accused and placed undue emphasis on the issue of the complainants credibility were frequently raised. For instance in R v Brown (Milton)19 the defendant subjected the two complainants to "repetitious and irrelevant questions designed to intimidate and humiliate them." Perhaps the most stringent criticism related to the fact that "since it was judges who had contributed to the situation in which sexual history evidence was freely used in rape trials, it scarcely made sense to leave it to them to decide whether and when to exclude it."20 McColgan has argued that the body of appellate decisions on the application of section 2 suggests that the refusal to admit evidence of the complainant's sexual history will frequently result in a successful appeal.21 Thus, section 2 although designed to narrow the common law scope for the introduction of sexual history evidence has been interpreted to widen the circumstances in which such evidence may be introduced.22 This criticism is reflected in the case law and is a direct consequence of the failure of section 2 to give guidance on the application of the "fairness" condition for leave to use sexual history evidence. In R v Viola 23 in deciding whether cross examination should be allowed under section 2 it was emphasised that "if the questions are relevant to an issue in the trial in the light of the way the case is being run, for instance relevant to the issue of consent, as opposed merely to credit, they are likely to be admitted."24 This marked a significant departure from the common laws previous categorisation of sexual history evidence as generally irrelevant to the issue of consent.25 More importantly what was lacking from in R v Viola was any discussion as to the degree of relevance needed to qualify for admissibility in this context.26 Consequently, in most cases defence counsel argued that the sexual history evidence in question was relevant to consent and such applications were "often made in very general terms on the basis that lack of consent could only be determined if a good deal was known about the complainant's proclivities."27 Temkin28 has identified three controversial issues which were consistently held to be relevant in determining consent and thus cross examination was permitted on those issues namely promiscuity,29 virginity30 and supportive assertions made by the complainant.31 From this perspective it is evident particularly where the issue of consent was concerned, sexual history evidence of a dubious nature which had the purpose of attacking the complainant's credibility continued to be admitted in many cases.32 This was reaffirmed by a study conducted by Temkin which invoked in depth interviews with ten barristers who were experienced in prosecuting and defending in rape trials revealed that discrediting of complainants was a important strategy in rape trials.33 For instance one barrister espoused that "defendants often want you to dig up every piece of smut there is about the complainant."34
