SECTION 41 YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999

Transcription

1 SECTION 41 YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 Statute 1. Section 41 of the Youth Justice and Criminal Evidence Act 1999 [ YJCEA 1999 ] provides as follows (defined terms emphasised and annotations added in italics in square brackets): (1) If at a trial a person is charged with a sexual offence [defined s.42(1)(d)], then, except with the leave of the court - (a) no evidence may be adduced, and (b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour [defined s.42(1)(c)] of the complainant. (2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied (a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case [defined s.42(1)(a)]. (3) This subsection applies if the evidence or question relates to a relevant issue and either (a) that issue is not an issue of consent [defined s.42(1)(b)]; or (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or (c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar

2 (i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event, that the similarity cannot reasonably be explained as a coincidence. (4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness. (5) This subsection applies if the evidence or question (a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and (b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused. (6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate). (7) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence (a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but (b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge. (8) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.

3 2. Section 42 provides a number of definitions, as follows: (1) In section 41 (a) relevant issue in the case means any issue falling to be proved by the prosecution or defence in the trial of the accused; (b) issue of consent means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented); (c) sexual behaviour means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused; and (d) subject to any order made under subsection (2), sexual offence shall be construed in accordance with section 62. Checklist 3. Ten steps should be followed in assessing whether leave should be given under s.41 (1) Is D charged with a sexual offence? [s.41(1)] (2) Is the proposed evidence or question about any sexual behaviour of the complainant? [s.41(1)] (3) Does it relate to a relevant issue and that issue is not an issue of consent? [s.41(3)(a)]; OR (4) Does it relate to a relevant issue and that issue is an issue of consent and the sexual behaviour is alleged to have taken place at or about the same time as the event charged? [s.41(3)(b)]; OR (5) Does it relate to a relevant issue and that issue is an issue of consent and the sexual behaviour alleged is so similar to other sexual behaviour of the complainant as part of the event charged or at or about the same time as that event? [s.41(3)(c)] (6) Only if step (4), (5) or (6) applies: Is the main purpose not merely to impugn the credibility of the complainant as a witness? [s.41(4)] (7) Does it relate to evidence adduced by the prosecution about the sexual behaviour of the complainant AND would go no further than is necessary to rebut or explain that evidence? [s.41(5)]

4 (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:

5 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,

6 even if sent to the defendant by her, have any relevance to whether she had sexual intercourse with him in a park 8 months later? In any event, his defence was not reasonable belief in consent. He denied sexual intercourse. (3) At best, this was evidence supporting the assertion that this was a false complaint motivated by malice or rejection. According to R v DB [2012] EWCA Crim 1235 (decided before but not cited to the court in R v T) motive is not a relevant issue in the case as defined by s.42(1)(a) [see paragraph 32 below]. (4) If it was not a relevant issue in the case, s.41(3) could not apply and the court could not grant leave [s.41(2)(a)]. (5) If it was a relevant issue, it was not an issue of consent, so s.41(3)(a) applied. Leave would have to be granted, but only if a conclusion of the jury on a relevant issue (such as guilt) might thereby be rendered unsafe [s.41(2)(b)]. (6) As to Facebook, the importance of this decision is the acknowledgement that defendants can readily obtain images and manipulate them, as well as making false entries on Facebook pages. See also the discussion in Ormerod and O Floinn Social networking material as criminal evidence [2012] Crim LR 486. (7) As a footnote, after the adjournment the appeal was later abandoned by the appellant. False complaints 11. False complaints are not sexual behaviour. Being false, no sexual behaviour actually took place as alleged in the complaint. The difficulty is in judging whether there is sufficient evidence that a complaint was false for it to go to the jury as such. 12. S.41 will of course apply to the reverse situation, where the complainant has falsely denied a true previous sexual experience. 13. Where the defendant seeks to adduce evidence or ask questions about an allegedly false complaint, he must seek a ruling from the judge that s.41 does not apply, and also provide a proper evidential basis for the allegation [R v T and H [2001] EWCA Crim 1877]. (1) There must have been an earlier complaint of a sexual nature. In R v Lefeuvre [2011] EWCA Crim 1253 there were allegedly false complaints about the theft of a mobile phone on two occasions, once when she woke up to find herself naked, but neither of these involved a complaint of sexual assault. On another occasion someone else complained of an assault in her hall of residence, but she made no complaint. The final incident was a complaint of a stranger entering her flat and sexually assaulting her, but there was no evidence that this was false. In R v Callaghan [2012] EWCA Crim 1669 the complainant had accused her former husband of assaulting her whilst she was asleep, but when he called the police she refused to make a complaint. (2) The earlier complaint must have been false. In R v Winter [2008] EWCA Crim 3 the complainant had told the police that she had a close and loving relationship

7 with her partner M, but the following day returned to the police station to explain that she was also involved in an active sexual relationship with another man S. The Court of Appeal (Longmore LJ, Beatson & Blake JJ) concluded that the first statement that she was devoted to M was not a lie merely because she had a sexual relationship with S, but even if it was a lie it was short-lived and insignificant. (3) There must be a proper evidential basis for the allegation of falsity. The test is whether falsity is a reasonable inference to draw, no higher than that [R v E [2005] Crim LR 227]. The defence advocate cannot seek leave on the basis that the evidence will come from questioning the complainant, in the hope of showing that the complaint was false [R v Abdelrahhman [2005] EWCA Crim 1367]. Mere inconsistencies are not enough, nor is the fact that the police or CPS decided that there was insufficient evidence to prosecute [R v RD [2009] EWCA Crim 2137]. (4) Lack of cooperation with the police may provide a proper evidential basis for the allegation of falsity, if the circumstances are stark enough. R v Garaxo [2005] EWCA Crim 1170 is the high point from a defendant s viewpoint, and was said in R v V [2006] EWCA Crim 1901 to have been decided on particular facts. R v AM [2009] EWCA Crim 618 is the best guide, concerning a case where an allegation of rape was made only after a housing officer told the complainant that it would not assist her to be moved unless she reported it to the police. She told the police that she was only reporting the incident to get rehoused, she did not want it investigated or taken further, and she would not support a prosecution or attend court. She said this was because she was scared of repercussions. The Court of Appeal stressed that such decisions are fact-sensitive, but the relevant question is whether that material is capable of leading to a conclusion that the previous complaint was false. In that case it was. In R v Hilly [2014] EWCA Crim 1614 even four separate unpursued allegations of sexual abuse against four different men was insufficient to raise an inference that they were false. (5) A previous failed prosecution does not provide evidence of falsity. All it means is that the Crown did not satisfy the criminal burden and standard of proof [R v BD [2007] EWCA Crim 4; R v Davarifar [2009] EWCA Crim 2294]. (6) The allegation will also be one of bad character, so the provisions of s.100 of the Criminal Justice Act 2003 will apply. (7) Care must be taken to ensure that questioning does not become protracted and lead to the exploration of irrelevant material [R v Lee B [2005] EWCA Crim 3146]. The procedural requirements and powers should be used to prevent this [see below] Issue of Consent (Steps 3, 4, 5 & 6) Not an issue of consent (Step 3) 14. Reasonable belief in consent is not an issue of consent [s.42(1)(b)]. Such a belief must have existed at the time of the alleged offence. Unless the defendant knew about the sexual behaviour of the complainant at that time, it is irrelevant to his state of mind.

8 15. Note the impact of the SOA 2003, which now requires such a belief to be reasonable, as well as honestly held (which was the test at the time s.41 was passed). Honest belief and reasonable belief are very different things. In R v Bahador [2005] EWCA Crim 396 the defendant sought to rely on the fact that the complainant had performed at a club when she bared her breast and simulated oral sex with a man. That could not reasonably have caused him to believe that she would consent to intercourse with him after she left the club. In R v Harrison [2006] EWCA Crim 1543 the defendant was rightly excluded from asking about the complainant having consensual sex with another man she had met with the defendant in a club and gone with to a house. Three hours later the complainant woke up to find the defendant digitally penetrating her. The earlier consensual intercourse with another man could not have given rise to a reasonable belief that she would consent to his actions whilst she was asleep. 16. An allegation that the complainant is motivated by malice is not an issue of consent. Thus evidence of a later consensual relationship with the defendant which led to a desire for revenge would be both relevant and admissible [R v F [2005] 2 Cr App R 13]. 17. An allegation that a young complainant s detailed account could have come from other sexual experiences is not an issue of consent. Realistically, it should only arise with very young complainants, where the prosecution case is that the allegations must be true by reason of a level of detail not to be expected from the imagination of someone of that age. It does not arise where a 14 year old gives evidence of masturbation and normal sexual conduct, as it is almost inevitable that such information would be known by that age [R v MF [2005] EWCA Crim 3376]. At or about the same time (Step 4) 18. The window of time is likely to be fairly limited, as a complainant s responses will vary from occasion to occasion. Consent is not given once and for all time. Equally, behaviour with others is unlikely to be relevant and therefore admissible. Such decisions will be fact-sensitive. 19. R v Mukadi [2004] Crim LR 373 is a difficult case. The Court of Appeal (Mantell LJ, Sir Edwin Jowett & Recorder of Manchester) decided that cross-examination should have been allowed about an incident earlier in the same day when the complainant climbed into an expensive car with an older man in Oxford Street, drove to a filling station with him and exchanged phone numbers, because this might have led to the inference that she anticipated that some sexual activity would follow. Quite how this could have been relevant to the issue of consent to intercourse with a different man several hours later, after which she jumped out of a window breaking two wrists and a kneecap, is puzzling! As Professor Di Birch said in the Criminal Law Review commentary [2004] Crim LR 373: the suggestion may have been that the complainant s demeanour was consistent with prostitution the emphasis on her dress, the dirty interior of the car (mine would not have passed muster with the Court of Appeal either, I fear) and the age of its solitary occupant, together with the business of the exchange of numbers at the filling station, suggest that this was no ordinary romantic encounter. But in the absence of any clear

9 evidence it would seem improper to draw such an inference and then to apply it laterally to the complainant s relationship with M, who does not appear to have been suggesting that the relationship was a commercial one. What is not permissible is for evidence to be adduced on the basis of ostensible relevance to consent when the real purpose is to discredit the complainant: s.41(4) expressly forbids this tactic. The reasoning employed in the present case appears to draw on a dangerous generalisation about consent as an attitude of mind rather than a choice made on an individualised, perhaps even capricious, basis. To the extent that the real purpose might have been, as the trial judge clearly suspected, to discredit the complainant, the evidence was doubly damned. It is now generally accepted to be a rogue decision. So similar (Step 5) 20. The similarity must be particular and unusual. Going to the same hotel as one visited previously for a one night stand is not enough [R v X [2005] EWCA Crim 2995]. 21. In R v Harris [2009] EWCA Crim 434 the defendant was a homeless man picked up by the complainant and taken back to her flat where they got drunk together. She alleged that he detained her there by threats, assaulted and raped her. Medical records showed that she had a history of casual sex with illegal taxi drivers, drinking alcohol excessively and engaging in risky sexual liaisons. She described a wish to punish herself. She said the notes misrepresented the history she had given medical staff. The defendant was not allowed to adduce this evidence, as it was tantamount to saying that the complainant was a person who had engaged in casual sex in the past and therefore would have been likely to do so with the defendant. The Court of Appeal upheld this decision as being one open to the judge as the primary decision maker. 22. One example of sufficient similarity is R v T [2004] 2 Cr App R 551. Both the event charged and the previous incident involved having sex inside a metal climbing frame in a children s playground in a rather specific sexual position. The trial judge refused the application for leave, but the Court of Appeal allowed the appeal. The previous incident was 3-4 weeks earlier, but the Court of Appeal said it was probable that there was no requirement that the temporal link should be particularly close. In any event, the application should have been dealt with under s.41(3)(c)(i), not s.41(3)(c)(ii), so that the temporal requirement did not apply. 23. Note that the similarity is to be judged according to the evidence adduced or to be adduced by or on behalf of the accused [s.41(3)(c)(i)]. Even if there is no independent evidence in support it should be assumed to be true for the purpose of granting or refusing leave. It is for the jury to assess whether or not it is or may be true, and what weight to give to the evidence.

10 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.

11 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.

12 35. However, failure to follow the procedure in the Rules does not give the judge a discretion to exclude evidence or questions which must be allowed under s.41. The judge could only adjourn to allow the rules to be complied with and the prosecution to make enquiries, as in R v T [2012] EWCA Crim Philip Mott QC 28 February 2015