(back to preceding text)

    31. As a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent. It is a species of prospectant evidence which may throw light on the complainant's state of mind. It cannot, of course, prove that she consented on the occasion in question. Relevance and sufficiency of proof are different things. The fact that the accused a week before an alleged murder threatened to kill the deceased does not prove an intent to kill on the day in question. But it is logically relevant to that issue. After all, to be relevant the evidence need merely have some tendency in logic and common sense to advance the proposition in issue. It is true that each decision to engage in sexual activity is always made afresh. On the other hand, the mind does not usually blot out all memories. What one has been engaged on in the past may influence what choice one makes on a future occasion. Accordingly, a prior relationship between a complainant and an accused may sometimes be relevant to what decision was made on a particular occasion.

    32. In a balanced review of the voluminous critical literature in the United Kingdom between 1975 and 1999 Mr Kibble has shown that the principal focus throughout has been on the irrelevance and prejudicial impact of sexual experience of the complainant with other men. The target of the literature was the 1976 Act. When the issue of the relevance of sexual experience between a complainant and a defendant was raised there was broad agreement that such evidence is sometimes relevant (e.g. an ongoing relationship) and sometimes irrelevant (e.g. an isolated episode in the past). There was no case made out in the literature for the blanket exclusionary scheme incorporated in section 41 in respect of prior sexual experience between a complainant and accused. Not surprisingly the legislative technique adopted in section 41 has been criticised. Professor Diane Birch ("A Better Deal for Vulnerable Witnesses?" [2000] Crim LR 223, 248), trenchantly commented:

"Under section 41, the complainant's sexual behaviour (including behaviour with the accused) has relevance to consent only where it took place at or about the same time as the event of the subject-matter of the charge, or where it is strikingly similar to behaviour of the subject-matter of the charge or to any other sexual behaviour alleged to have taken place at or about that time. All that can be revealed, it would seem, is evidence such as that the complainant was seen in a passionate embrace with the accused just before (or just after) the alleged offence; bizarre and unusual conduct like the much-discussed propensity to re-enact the balcony scene from Romeo and Juliet, and (perhaps) evidence that the complainant was picking up clients as a prostitute (if it is D's defence that he was so picked up). Along with all the complainant's other sexual doings, the remainder of the history of any sexual relationship the complainant has had with the accused will, it seems, have to be concealed from the jury or magistrates. It is not clear how this is to be done in a case where, for example the parties are living together: is the jury simply to be told what happened in the bedroom without any idea of whether D was a trespasser or an invitee? Presumably there will have to be some concept of background evidence that it is necessary for the jury to know in order to make sense of the evidence in the case.

"Section 41 is well-intentioned, but the constraints laid on relevance go too far. . . ."

It is difficult to dispute this assessment. After all, good sense suggests that it may be relevant to an issue of consent whether the complainant and the accused were ongoing lovers or strangers. To exclude such material creates the risk of disembodying the case before the jury. It also increases the danger of miscarriages of justice. These considerations raise the spectre of the possible need for a declaration of incompatibility in respect of section 41 under section 4 of the Human Rights Act 1998.

    33. Counsel for the Secretary of State submitted that section 41 was based on the decision of the Supreme Court of Canada in R v Seaboyer 83 DLR (4th) 193. In that case a first attempt to introduce "rape-shield" provisions directed against the admissibility of sexual history evidence in rape cases was held to be invalid under section 7 of the Charter of Rights and Freedoms. By a majority the Supreme Court indicated what kind of provisions would be lawful. Following R v Seaboyer section 276 of the Criminal Code was amended. Subsequently the Supreme Court held that section 276 as amended was valid. As amended it was not viewed as a blanket exclusion: R v Darrach (2000) 191 DLR (4th) 539. Unfortunately, the Secretary of State's understanding of the Canadian position was flawed. R v Seaboyer is largely concerned with the irrelevance of sexual experience between the complainant and third parties. In her leading judgment McLachlin J placed general reliance upon an article of Galvin, who emphasises the probative value of prior sexual conduct between a complainant and an accused to the issue of consent: "Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade" (1986) 70 Minn LRev 763. Moreover, McLachlin J made a telling comment on prior sexual history with the accused. It is to the following effect, at 83 DLR (4th) 193, 280D:

"I question whether evidence of other sexual conduct with the accused should automatically be admissible in all cases; sometimes the value of such evidence might be little or none".

R v Seaboyer does not justify the breadth of the exclusionary provisions of section 41 in respect of previous sexual experience between a complainant and a defendant. The amended section 276 of the Canadian statute is also in more flexible terms than section 41. Section 276 reads:

"(1) In proceedings in respect of [certain sexual offences] evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

is less worthy of belief.

(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines . . . that the evidence

is of specific instances of sexual activity;

is relevant to an issue at trial; and

has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.

(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account

(a) the interests of justice, including the right of the accused to make a full answer and defence;"

It will be observed that subsection (1) is directed at impermissible uses of the evidence. It is not a blanket prohibition. It has an inbuilt flexibility as appears from the balancing provision of subsection (2) and particularly the words of paragraph (c). The Canadian model is therefore in substantially less restrictive terms than section 41. Moreover, it is noteworthy that a law reform proposal in New South Wales explicitly accepts that the fact that the complainant engaged in sexual activity with the accused in the past may be relevant to the question whether she consented to sexual activity on the occasion in question: New South Wales Law Reform Commission Report (1998) (No 87) on section 409B of the Crimes Act 1900. A similar flexible approach is reflected in a discussion paper of the New Zealand Law Commission: "Evidence Law: Characters and Credibility" (1997) (Preliminary Paper 27) published in February 1997. Commonwealth developments do not support the breadth of the exclusionary provisions of section 41 in respect of the potential relevance of the sexual experience of a complainant with an accused.

VII. The interpretation of section 41

    34. In order to assess whether section 41 is incompatible with the convention right to a fair trial, it is necessary to consider what evidence it excludes. The mere fact that it excludes some relevant evidence would not by itself amount to a breach of the fair trial guarantee. On the other hand, if the impact of section 41 is to deny the right to accused in a significant range of cases from putting forward full and complete defences it may amount to a breach.

    35. Counsel for the Secretary of State has argued that unfairness to an accused will rarely arise because evidence of sexual experience between a complainant and an accused will almost always be admissible on the basis of the defence that the accused thought that the complainant consented. His argument has assumed that in practice an accused will almost invariably be able to put forward both defences. Counsel for the defendant has persuaded me that the defence of belief in consent would often have no air of reality and would in practice not be available, eg in cases where there are diametrically opposite accounts of the circumstances of the alleged rape, with the complainant insisting that it was perpetrated with great violence and the accused saying that the complainant took the initiative in an act of consensual intercourse. In any event, it does not meet the difficulty that the judge's direction to the jury would always have to be to the effect that the past experience between the complainant and the accused is irrelevant to the issue of consent. I would reject the submissions of counsel for the Secretary of State on this point. In these circumstances counsel for the Secretary of State accepts that, despite the interlocutory nature of the proceedings, the House must now grapple with the problem whether, measured against the guarantee of a fair trial, the breadth of the exclusionary provisions of section 41 in respect of sexual experience between a complainant and the defendant are justified and proportionate. The position of counsel for the Secretary of State on this point is realistic. To postpone the decision until after the conclusion of a number of pending trials, which raise the issue, would be unfair to individuals and contrary to the public interest.

    36. Counsel for the Secretary of State further relied on the principle that, in certain contexts, the legislature and the executive retain a discretionary area of judgment within which policy choices may legitimately be made: see Brown v Stott [2001] 2 WLR 817. Clearly the House must give weight to the decision of Parliament that the mischief encapsulated in the twin myths must be corrected. On the other hand, when the question arises whether in the criminal statute in question Parliament adopted a legislative scheme which makes an excessive inroad into the right to a fair trial the court is qualified to make its own judgment and must do so.

    37. The methodology to be adopted is important. In a helpful paper under the title "The Act of the Possible: Interpreting Statutes under the Human Rights Act" [1998] EHRLR 665 Lord Lester of Herne Hill QC has summarised the correct approach, at p 674:

"The first question the courts must ask is: does the legislation interfere with a Convention right? At that stage, the purpose or intent of the legislation will play a secondary role, for it will be seldom, if ever, that Parliament will have intended to legislate in breach of the Convention. It is at the second stage, when the Government seeks to justify the interference with a Convention right, under one of the exception clauses, that legislative purpose or intent becomes relevant. It is at that stage the principle of proportionality will be applied."

See also Bertha Wilson J, "The Making of a Constitution: Approaches to Judicial Interpretation" (1988) PL 370, 371-372; and David Feldman, "Proportionality and The Human Rights Act 1998" in The Principle of Proportionality in the Laws of Europe (1999), pp117, 122-123.

    38. It is well established that the guarantee of a fair trial under article 6 is absolute: a conviction obtained in breach of it cannot stand. R v Forbes, [2001] 2 WLR 1, 13, para 24. The only balancing permitted is in respect of what the concept of a fair trial entails: here account may be taken of the familiar triangulation of interests of the accused, the victim and society. In this context proportionality has a role to play. The criteria for determining the test of proportionality have been analysed in similar terms in the case law of the European Court of Justice and the European Court of Human Rights. It is not necessary for us to re-invent the wheel. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 Lord Clyde adopted a precise and concrete analysis of the criteria. In determining whether a limitation is arbitrary or excessive a court should ask itself:

"whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

The critical matter is the third criterion. Given the centrality of the right of a fair trial in the scheme of the Convention, and giving due weight to the important legislative goal of countering the twin myths, the question is whether section 41 makes an excessive inroad into the guarantee of a fair trial.

    39. Subject to narrow exceptions section 41 is a blanket exclusion of potentially relevant evidence. Section 41 must however be construed in order to determine its precise exclusionary impact on alleged previous sexual experience between the complainant and the accused. Two processes of interpretation must be distinguished. First, ordinary methods of purposive and contextual interpretation may yield ways of minimising the prima facie exorbitant breadth of the section. Secondly, the interpretative obligation in section 3(1) of the 1998 Act may come into play. It provides that "so far as it is possible to do so, primary legislation . . . must be read and given effect in a way which is compatible with the Convention rights". It is a key feature of the 1998 Act.

    40. Three possible ways of minimising the excessive breadth of section 41 must be considered. The first possible gateway is to be found in section 41(3)(b), viz:

"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;"

An example covered by this provision would be where it is alleged that the complainant invited the accused to have sexual intercourse with her earlier in the evening. In my opinion, however, neither ordinary methods of interpretation nor the interpretative obligation under section 3 of the 1998 Act enables one to extend the temporal restriction to days, weeks or months. Section 41(3)(b) acknowledges by its own terms that previous sexual experience between a complainant and an accused may be relevant but then restricts the admission of such evidence by an extraordinarily narrow temporal restriction.

    41. The second gateway suggested by counsel for the Director of Public Prosecutions is the provision in section 41(5)(b) enabling evidence adduced by the prosecution to be rebutted or explained by or on behalf of the defence. The suggestion is that the Crown could adduce evidence which will enable the defence to lead evidence of previous sexual experience in rebuttal. This is not a coherent and satisfactory solution. It depends on the goodwill and co-operation of the prosecutor. A defendant has the right in a criminal trial to offer a full and complete defence. I would reject this suggested solution.

    42. The third gateway is section 41(3)(c). It permits evidence where

"(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 -

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…

that the similarity cannot reasonably be explained as a coincidence."

This gateway is only available where the issue is whether the complainant consented and the evidence or questioning relates to behaviour that is so similar to the defence's version of the complainant's behaviour at the time of the alleged offence that it cannot reasonably be explained as a coincidence. An example would be the case where the complainant says that the accused raped her; the accused says that the complainant consented and then after the act of intercourse tried to blackmail him by alleging rape; and the defence now wishes to ask the complainant whether on a previous occasion she similarly tried to blackmail the accused.

    43. Rightly none of the counsel appearing before the House were prepared to argue that on ordinary methods of interpretation section 41(3)(c) can be interpreted to cover, for example, cases similar to the one before the House where it is alleged that there was a previous sexual experience between the complainant and the accused on several occasions during a three week period before the occasion in question. Let me consider ordinary methods of interpretation in a little more detail. One could say that section 41(3)(c) is a statutory adoption of the striking similarity test enunciated in R v Boardman [1975] AC 421. So interpreted section 41(3)(c) is a narrow gateway, which will only be available in rare cases. Alternatively, one could argue that section 41(3)(c) involves the test of high probative force of the evidence, which makes it just to admit it, in accordance with the principle stated in Director of Public Prosecutions v P [1991] 2 AC 447. Even if this approach was consistent with the language of section 41, the threshold requirement would be too high: often the evidence will be relevant but not capable of being described as having "high probative value". These ways of interpreting section 41(3)(c) cannot solve the problem of the prima facie excessive inroad on the right to a fair trial. It is important to concentrate in the first place on the language of section 41. Making due allowance for the words "in any respect" in section 41(3)(c), the test "that the similarity cannot reasonably be explained as a coincidence" is inapt to allow evidence to be admitted or questioning to take place that, for example, (i) the complainant invited the accused at an office party on a Friday to come to her flat on the Sunday to make love to her or (2) that the complainant and the accused had sexual relations on several occasions in the previous month. While common sense may rebel against the idea that such evidence is never relevant to the issue of consent, that is the effect of the statute. In my view ordinary methods of purposive construction of section 41(3)(c) cannot cure the problem of the excessive breadth of the section 41, read as a whole, so far as it relates to previous sexual experience between a complainant and the accused. Whilst the statute pursued desirable goals, the methods adopted amounted to legislative overkill.

    44. On the other hand, the interpretative obligation under section 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature: R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, per Lord Cooke of Thorndon, at p 373F; and my judgment, at p 366B. The White Paper made clear that the obligation goes far beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative provision: see "Rights Brought Home: The Human Rights Bill" (1997) (Cm 3782), para 2.7. The draftsman of the Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: section 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: section 3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it: compare, for example, articles 31 to 33 of the Vienna Convention on the Law of Treaties (1980) (Cmnd 7964). Section 3 qualifies this general principle because it requires a court to find an interpretation compatible with Convention rights if it is possible to do so. In the progress of the Bill through Parliament the Lord Chancellor observed that "in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility" and the Home Secretary said "We expect that, in almost all cases, the courts will be able to interpret the legislation compatibility with the Convention": Hansard (HL Debates), 5 February 1998, col 840 (3rd Reading) and Hansard (HC Debates), 16 February 1998, col 778 (2nd Reading). For reasons which I explained in a recent paper, this is at least relevant as an aid to the interpretation of section 3 against the executive: "Pepper v Hart: A re-examination" (2001) 21 Oxford Journal of Legal Studies 59. In accordance with the will of Parliament as reflected in section 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms, such an impossibility will arise: R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 132A-B per Lord Hoffmann. There is, however, no limitation of such a nature in the present case.

    45. In my view section 3 requires the court to subordinate the niceties of the language of section 41(3)(c), and in particular the touchstone of coincidence, to broader considerations of relevance judged by logical and common sense criteria of time and circumstances. After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under section 3 to read section 41, and in particular section 41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible. The result of such a reading would be that sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under section 41(3)(c). On the other hand, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, eg an isolated episode distant in time and circumstances. Where the line is to be drawn must be left to the judgment of trial judges. On this basis a declaration of incompatibility can be avoided. If this approach is adopted, section 41 will have achieved a major part of its objective but its excessive reach will have been attenuated in accordance with the will of Parliament as reflected in section 3 of the 1998 Act. That is the approach which I would adopt.

The task of trial judges

    46. It is of supreme importance that the effect of the speeches today should be clear to trial judges who have to deal with problems of the admissibility of questioning and evidence on alleged prior sexual experience between an accused and a complainant. The effect of the decision today is that under section 41(3)(c) of the 1999 Act, construed where necessary by applying the interpretative obligation under section 3 of the Human Rights Act 1998, and due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, 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 under article 6 of the convention. If this test is satisfied the evidence should not be excluded.

IX. Application of the interpretation adopted.

    47. The appeal before the House concerns a concrete case. It involves the permissibility of questioning a complainant about an alleged recent sexual relationship between her and the defendant, and the admissibility of evidence on that point. These are matters for the trial judge to rule on at the resumed trial. But in my view he must do so on the broader interpretation of section 41(3)(c) required by section 3 of the 1998 Act.

X. Disposal

    48. I would decline to make the rulings sought by the Director of Public Prosecutions and the Secretary of State. Given the terms of this speech it is unnecessary to answer the certified question. I would dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    49. Rape is the most humiliating, distressing and cynical of crimes. It presents itself in various ways to the prosecutor. Sometimes it is accompanied by acts of extreme violence. In such cases proof that the crime has been perpetrated will be little more than a formality and the more difficult task is likely to be to prove the identity of the perpetrator. But more often than not very little, if any, violence is used, identity is not in issue as the parties were known to each other and the defendant admits that on the occasion in question he had sexual intercourse. The sole issue for the prosecutor in these cases will be whether it can be proved that the complainant did not consent to the sexual intercourse. The crime is constituted by proof of the fact of sexual intercourse with a person who at the time of the intercourse did not consent to it, accompanied by proof that at the time the defendant either knew that the person did not consent to the intercourse or was reckless as to whether that person consented to it: Sexual Offences Act 1956, as substituted by section 142 of the Criminal Justice and Public Order Act 1994. The absence of consent is, in these cases, the crucial issue. This is a question of fact, which must be resolved in the light of the evidence.

    50. It is notorious that proof that the complainant did not consent to an admitted act of sexual intercourse raises difficult questions which, in the typical case, resolve themselves into issues of credibility. In its modern form the definition of the crime recognises that every woman has the right, on each and every occasion, to say "no". As Gonthier J put it in R v Darrach (2000) 191 DLR (4th) 539, 568, actual consent must be given for each instance of sexual activity. The crime has now been extended to the rape of a man by another man: Sexual Offences Act 1956, section 1(1) as substituted by section 142 of the Criminal Justice and Public Order Act 1994. So every man also has that right. But it is one thing for the law to recognise these essential facts. It is quite another for the law to put its principles into practice. That, in the final analysis, is what this case is about.