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|Judgments - Regina v. A
HOUSE OF LORDS
Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead Lord Clyde Lord Hutton
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
ON 17 MAY 2001
 UKHL 25
LORD SLYNN OF HADLEY
1. In recent years it has become plain that women who allege that they have been raped should not in court be harassed unfairly by questions about their previous sex experiences. To allow such harassment is very unjust to the woman; it is also bad for society in that women will be afraid to complain and as a result men who ought to be prosecuted will escape.
2. That such questioning about sex with another or other men than the accused should be disallowed without the leave of the court is well established. It was recognised in section 2 of the Sexual Offences (Amendment) Act 1976 which provided that without the leave of the judge there should be no evidence or cross examination by or on behalf of the defendant of a complainant's sexual experience with a person other than the accused. Leave was only to be given by the judge "if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked".
3. Such a course was necessary in order to avoid the assumption too often made in the past that a woman who has had sex with one man is more likely to consent to sex with other men and that the evidence of a promiscuous woman is less credible.
4. Evidence of previous sex with the accused also has its dangers. It may lead the jury to accept that consensual sex once means that any future sex was with the woman's consent. That is far from being necessarily true and the question must always be whether there was consent to sex with this accused on this occasion and in these circumstances.
5. But the accused is entitled to a fair trial and there is an obvious conflict between the interests of protecting the woman and of ensuring such fair trial. Such conflict is more acute since the Human Rights Act 1998 came into force. The question is whether one of these interests should prevail or whether there must be a balance so that fairness to each must be accommodated and if so whether it has been achieved in current legislation. That is essentially the question which arises in this case. I gratefully adopt the statement of the facts and the relevant statutory provisions set out in the text of the speech prepared by my noble and learned friend Lord Steyn.
6. The question certified by the Court of Appeal which gave leave to appeal to your Lordships' House is
7. Section 41 of the Youth Justice and Criminal Evidence Act 1999 prohibits the giving of evidence and cross examination about any sexual behaviour of the complainant except with leave of the court. Leave may be given where a) consent is an issue and where the sexual behaviour of the complainant 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" (section 41(3)(b)) and b) where the sexual behaviour of the complainant to which the question or evidence relates is alleged to have been "in any respect, so similar" to the sexual behaviour which is shown by evidence to have taken place as part of the event which is the subject matter of the charge or to any other sexual behaviour of the complainant which took place at or about the same time as that event "that the similarity cannot reasonably be explained as a coincidence" (section 41(3)(c)).
8. Such questions are not to be allowed if their purpose is to establish material to impugn the credibility of the complainant as a witness. Leave may also be given if the evidence of the complainant's sexual behaviour goes no further than to rebut prosecution evidence.
9. It is apparent that prima facie the restriction placed on the court's power to give leave seriously limits the opportunities for cross examination or the adducing of evidence on behalf of the accused. The limitation in section 41(3)(b) to conduct "at or about the same time" as the event charged would prima facie prohibit questions as to a continuous period of cohabitation or sexual activity, or as to individual events more than a very limited period before the event, the subject matter of the charge. The requirement that the sexual behaviour relied on must be so similar to the sexual activity which took place as part of the event charged or be so similar to any other sexual behaviour which took place "at or about the same time" as the event charged that the similarity cannot "reasonably be explained as a coincidence" is on the face of it very restrictive.
10. The need to protect women from harassment in the witness box is fundamental. It must not be lost sight of but I suspect that the man or woman in the street would find it strange that evidence that two young people who had lived together or regularly as part of a happy relationship had had sexual acts together, must be wholly excluded on the issue of consent unless it is immediately contemporaneous. The question whether such evidence should be believed and whether it is sufficient to establish consent or even belief in consent are different matters. The man and woman in the street might also find it strange that evidence may be given and cross examination allowed as to belief in consent but not to consent itself when the same evidence was being relied on. That distinction has been recognised in the cases but without in any way resiling from a strong insistence on the need to protect women from humiliating cross examination and prejudicial but valueless evidence, it seems to me clear that these restrictions in section 41 prima facie are capable of preventing an accused person from putting forward relevant evidence which may be evidence critical to his defence, whether it is as to consent or to belief that the woman consented. If thus construed section 41 does prevent the accused from having a fair trial then it must be declared to be incompatible with the Convention.
11. But the prima facie let alone the literal readings are not the end of the inquiry. Section 3 of the Human Rights Act 1998 requires that
12. I was initially tempted to think that the words "at or about the same time as the event" could be given a wide meaningcertainly a few hours perhaps a few days when a couple were continuously together. But that meaning could not reasonably be extended to cover a few weeks which are relied on in the present case and I consider in the event that even if read with Article 6 they must be given a narrow meaning which would not allow the evidence or cross examination in the present case or in other than cases where the acts relied on were really contemporaneous.
13. Section 41(3)(c) raises a different issue. Although if read literally or even perhaps purposively this provision is very restrictive, I think disproportionately restrictive, it is less precise than section 41 (3)(b). The section must be read and given effect in a way "which is compatible with the Convention rights" in so far as it is possible to do so. It seems to me that your Lordships cannot say that it is not possible to read section 41(3)(c) together with Article 6 of the Convention rights in a way which will result in a fair hearing. In my view section 41(3)(c) is to be read as permitting the admission of evidence or questioning which relates to a relevant issue in the case and which the trial judge considers is necessary to make the trial a fair one.
14. I do not consider that the provisions of section 41(5) admitting rebuttal evidence are sufficient in themselves to avoid unfairness. They are limited in their effect.
15. I agree with the statement in paragraph 46 of Lord Steyn's speech as to the effect of the decision today.
16. Despite the somewhat unusual procedural route which this case has taken, I think that the right course is to dismiss the appeal. The case should now be referred back to the trial judge for him to continue the case in the light of the present decision.
I. The Judge's preliminary rulings
17. In December 2000 the respondent (the defendant) was due to stand trial in the Crown Court on an indictment charging him with an offence of rape, the particulars being that on 14 June 2000 he raped the complainant. The defendant's defence is that sexual intercourse took place with the complainant's consent. It appears that he will alternatively rely on the defence that he believed that she consented.
18. The Crown's case is that the complainant first met the defendant together with a friend on or about 26 May 2000. The complainant and the defendant's friend formed a sexual relationship. The complainant visited the friend at the flat which he was then sharing with the defendant. At about 9 pm on 13 June 2000 the complainant and the friend had sexual intercourse at the flat when the defendant was not there. Later, when the defendant returned, the complainant, the friend and the defendant went for a picnic on the riverbank of the Thames. The friend and the defendant drank whisky and beer. When they got back to the flat the friend collapsed. An ambulance was called and the friend was taken to hospital. Later, in the early hours of 14 June 2000, the defendant and the complainant left the flat intending to walk to the hospital. The defendant led the way and chose a route which took them close to the river. As they walked along the towpath the defendant fell down. The complainant's account is that she tried to help him to his feet, whereupon he pulled her to the ground and had sexual intercourse with her. Later that day the complainant made a complaint of rape to the police. The police interviewed the defendant. Following the advice of his solicitor he declined to answer questions. He read a prepared statement in which he asserted in very general terms that "she was never against this sexual relationship that we were having".
19. According to the statement of facts and issues it is the defendant's case that:
20. On 8 December 2000 a preparatory hearing took place pursuant to section 29 of the Criminal Procedure and Investigations Act 1996. Counsel for the defendant applied for leave to cross-examine the complainant about the alleged previous sexual relationship between them and to lead evidence about it. Relying on the provisions of section 41 of the Youth Justice and Criminal Evidence Act 1999 the judge ruled: (i) that the act of consensual sexual intercourse with the friend could be put to the complainant in cross-examination; (ii) that the complainant could not be cross-examined, nor could evidence be led, about her alleged sexual relationship with the defendant; (iii) that the prepared statement could not be put in evidence.
21. The judge observed that this ruling would prima facie result in a breach of the right to a fair trial under article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled to the Human Rights Act 1998. Pursuant to section 35 of the 1996 Act the judge gave leave to the defendant to appeal to the Court of Appeal. The defendant exercised that right.
II. The decision of the Court of Appeal
22. The defendant appealed against the judge's rulings. In giving the judgment of the Court of Appeal Rose LJ pointed out that the judge's first ruling, viz giving leave to cross-examine the complainant about sexual intercourse with the friend of the defendant, was made in error. No such leave had been sought.
23. The judgment was, however, principally concerned with the rulings by the judge that the complainant could not be asked whether, nor could the defendant give evidence that, she had sexual intercourse with the defendant on occasions during the previous three weeks: R v Y, The Times, 13 February 2001. Rose LJ recorded a concession by the Crown, rightly made in his view, that the questioning and evidence in relation to the complainant's alleged prior sexual activity with the defendant was admissible under section 41(3)(a) of the 1999 Act in relation to the defendant's belief in the complainant's consent: see section 1 of the Sexual Offences (Amendment) Act 1976. It followed that the judge's ruling in entirely excluding such evidence was wrong. On the other hand, Rose LJ concluded that the effect of the Act is that the alleged previous sexual relationship is inadmissible on the issue of consent. On this supposition Rose LJ further stated that the Crown accepted that the trial judge will, in due course, have to direct the jury that the evidence of the complainant's consensual activity with the defendant during the period before the alleged rape is solely relevant to the question of the defendant's belief as to consent and is not relevant to the question of whether the complainant in fact consented. However, Rose LJ was of the view that such a direction might lead to an unfair trial because a previous sexual relationship may be relevant to the issue of consent as well as belief in consent.
24. Allowing the appeal the Court of Appeal observed:
On 31 January 2001 the Court of Appeal certified the following question:
At the same time the Court of Appeal granted the Crown leave to appeal to the House of Lords.
III. The Secretary of State's intervention
25. Counsel for the defendant indicated that on the appeal to the House he would invite the House to read down section 41 of the 1999 Act in accordance with section 3 of the Human Rights Act 1998 so that section 41 could be given effect in a way that was compatible with the fair trial guarantee under article 6 of the Convention, and if that was not possible, he would invite the House to make a declaration of incompatibility. In these circumstances the Secretary of State for the Home Department applied for leave to intervene at this stage. An Appeal Committee recommended that leave be given to the Secretary of State to intervene. In its 31st Report of 7 March 2001 drafted by Lord Hope of Craighead the Appeal Committee observed  1 WLR 789, 792-793:
In the result the House has had the advantage of submissions not only on behalf of both the Director of Public Prosecutions and the defendant but also on behalf of the Secretary of State. On the hearing of the appeal counsel for the Secretary of State referred to parts of the preceding Parliamentary debates but he made clear that he was not doing so as an aid to construction of the statutory language under the rule in Pepper v Hart  AC 593. Instead he used this material, together with other materials, to identify the mischief which led to the enactment of the statute.
26. On the hearing of the appeal counsel for the Director of Public Prosecutions informed the House that the same issue arises in 13 other criminal cases. It is therefore a matter of some urgency.
IV. The context of section 41
27. Following the Second World War the general principle of the equality of men and women in all spheres of life has gradually become established. In the aftermath of the sexual revolution of the sixties the autonomy and independence of women in sexual matters has become an accepted norm. It was this change in thinking about women and sex which made possible the decision of the House of Lords in R v R  1 AC 599 that the offence of rape may be committed by a husband upon his wife. It was a dramatic reversal of old fashioned beliefs. Discriminatory stereotypes which depict women as sexually available have been exposed as an affront to their fundamental rights. Nevertheless, it has to be acknowledged that in the criminal courts of our country, as in others, outmoded beliefs about women and sexual matters lingered on. In recent Canadian jurisprudence they have been described as the discredited twin myths, viz "that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief": R v Seaboyer (1991) 83 DLR (4th) 193, 258, 278C per McLachlin J. Such generalised, stereotyped and unfounded prejudices ought to have no place in our legal system. But even in the very recent past such defensive strategies were habitually employed. It resulted in an absurdly low conviction rate in rape cases. It also inflicted unacceptable humiliation on complainants in rape cases.
28. In Director of Public Prosecutions v Morgan  AC 182 the House of Lords held that in a trial for rape a subjective belief by the defendant that the victim consented to sexual intercourse afforded a defence. Following this decision the Advisory Group on the Law of Rape was established. It produced the so-called Heilbron Report (1975) (Cmnd 6352). It treated previous sexual association between the complainant and the accused as potentially relevant but advised that in general the previous sexual history of the complainant with other men was irrelevant. Parliament enacted legislation which subjected the admission of evidence of the previous sexual experience of a complainant with third parties to a leave requirement. It did not touch on prior sexual contact between the complainant and the accused: section 2(1) of the Sexual Offences (Amendment) Act 1976. Section 2(2) provides that the judge shall only give leave "if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked." The statute did not achieve its object of preventing the illegitimate use of prior sexual experience in rape trials. In retrospect one can now see that the structure of this legislation was flawed. In respect of sexual experience between a complainant and other men, which can only in the rarest cases have any relevance, it created too broad an inclusionary discretion. Moreover, it left wholly unregulated questioning or evidence about previous sexual experience between the complainant and the defendant even if remote in time and context. There was a serious mischief to be corrected.
V. Section 41
29. Sections 41 to 43 of the 1999 Act imposed wide restrictions on evidence and questioning about a complainant's sexual history. These provisions are contained in Chapter III of Part II of the statute and appear under the heading "Protection of Complainants in Proceedings for Sexual Offences". The material part of section 41 reads:
Section 41 imposes the same exclusionary provisions in respect of a complainant's sexual experience with the accused as with other men. This is the genesis of the problem before the House. There are differences which need to be explored. In this task I have been greatly assisted primarily by the careful and incisive arguments of counsel but also by an as yet unpublished comprehensive review of the literature, comparative jurisprudence, and different legislative models and proposals for reform prepared by Neil Kibble of the Department of Law, University of Wales Aberystwyth "The Admissibility of Prior Sexual History with the Defendant in Sexual Offence Cases" (February 2001). My understanding is that in revised form it will be published in the Cambrian Law Review. It amplifies his earlier paper "The Sexual History Provisions, Charting a course between inflexible legislative rules and wholly untrammelled judicial discretion"  Crim LR 274.
VI. Sexual experience with the accused contrasted with sexual experience with other men.
30. Although not an issue before the House, my view is that the 1999 Act deals sensibly and fairly with questioning and evidence about the complainant's sexual experience with other men. Such matters are almost always irrelevant to the issue whether the complainant consented to sexual intercourse on the occasion alleged in the indictment or to her credibility. To that extent the scope of the reform of the law by the 1999 Act was justified. On the other hand, the blanket exclusion of prior sexual history between the complainant and an accused in section 41(1), subject to narrow categories of exception in the remainder of section 41, poses an acute problem of proportionality.