Previous sexual history evidence

AuthorMatt James Thomason
Published date01 October 2018
Date01 October 2018
DOIhttp://doi.org/10.1177/1365712718793434
Subject MatterArticles
Article
Previous sexual history
evidence: A gloss on relevance
and relationship evidence
Matt James Thomason
School of Law, University of Nottingham, Nottingham, UK
Abstract
This article challenges the currently accepted wisdom that ‘previous sexual history evidence is
never relevant’. It sketches and defends a conception of ‘relevance’, and uses that conception
to analyse the plurality of issues to which previous sexual history evidence may theoretically be
relevant. It highlights that evidence of the complainant’s prior sexual relationship with the
accused (‘relationship evidence’) does not necessarily rely on legally forbidden propensity
reasoning to support relevance. The article then examines the current legal framework in
England and Wales and argues that the ‘ECHR gloss’, applied in RvA(2), should never have been
required, and has been used in situations, such as RvEvans, where it was likely never intended
to. In the current drive to reform s. 41, it is submitted that any such reforms must acknowledge
the differences between relationship evidence and other sexual history evidence.
Keywords
evidence
Introduction
The use of previous sexual history (PSH) evidence in sexual offence trials is one of the most contentious
and emotive topics in the criminal evidence field. The history of the use of such evidence is not pretty.
Centuries of relaxed rules of admissibility, supported by faulty judicial and academic reasoning,
1
had led
to ‘degrading, diminishing and functionally deficient cross-examination’ (Hunter, 2007: 262) of sexual
assault complainants. The first statutory intervention under s. 2 of the Sexual Offences (Amendment)
Corresponding author:
Matt James Thomason, School of Law, University of Nottingham, Law and Social Sciences, University Park, Nottingham
NG7 2RD, UK.
E-mail: matthew.thomason@nottingham.ac.uk
1. One need look no further than John Henry Wigmore (1913: 343, 367–368), who equated honesty with ‘real manliness’ and
considered unchaste women to be incapable of telling the truth.
The International Journalof
Evidence & Proof
2018, Vol. 22(4) 342–362
ªThe Author(s) 2018
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DOI: 10.1177/1365712718793434
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Act 1976 attempted to improve matters, though in practice was found to be severely lacking (Adler,
1987; Lees, 2002; Temkin, 1993, 2000). The current admissibility regime for PSH evidence, found in ss.
41–43 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999, is under attack in a very real way
from a number of sources. Prior to the June 2017 General Election, two amendments to s. 41 were
proposed. The first came from Liz Saville Roberts MP (Plaid Cymru), whose Sexual Offences (Amend-
ment) Bill 2016–2017 would have effectively barred the admissibility of any third-party PSH evidence
unless it would be ‘manifestly unjust’ not to admit it. The second, far more radical, proposal was tabled
as an amendment to the Prison and Courts Bill 2016–2017 by Labour’s Harriet Harman MP, and would
have banned all PSH evidence for all purposes and in all situations. These proposals arose out of the
media and public outcry following the widely publicised rape trial of footballer Ched Evans, and his
subsequent appeal,
2
retrial and acquittal. Though both Bills were scrapped due to the snap election,
Harriet Harman has indicated that she wants to revive her own amendment in the current Parliament
(Whitaker, 2017).
These hurried reform proposals reveal a fundamental misunderstanding of the multiple issues in a
criminal trial to which PSH evidence can be relevant and probative. They also fail to appreciate the fact
that claims of relevance here can be supported using several distinct modes of inferential reasoning.
Moreover, it is not at all clear how the Court of Appeal came to its conclusion in Evans that the PSH
evidence should have been admitted, and so reforming the law in its wake is misguided. Instead, the
argument put forward in this article is that reform efforts would be better directed to re-examining the
problem of ‘relationship evidence’
3
(evidence of a sexual assault complainant’s previous sexual activity
with the accused, rather than a third party) and the ‘ECHR gloss’
4
that was applied to s. 41 by the House
of Lords in RvA(2).
5
The first part of this article will reflect on the meaning of relevance as it is understood in terms of
logic, and how it is understood in the current law of England and Wales, with the argument being
advanced that these meanings are one and the same. The potential for the PSH of a complainant in a
sexual assault trial to be relevant (using the previously defended definition of relevance) to a live issue
in a trial in some way will then be examined in detail, with any differences between relationship
evidence and other PSH evidence being highlighted. The second part of this article will deal more
directly with how relationship evidence is currently handled by the law, and will delve into the history
of PSH evidence reform in order to explain why it was necessary for the House of Lords to apply the
ECHR gloss. Following this, it will be argued that this gloss has been left in place for too long, and that
it has been applied in situations it was likely never intended to—most recently in the case of Evans.
Therefore in this current climate of reform proposals to s. 41, the time is ripe for the ECHR gloss to
be stripped off, and for relationship evidence to be dealt with explicitly (and perhaps separately) by
statute.
When can previous sexual history evidence be relevant?
Before any assessment of the law, and how it operates in practice, can be made, we must be clear about
when, and in what circumstances, evidence of a sexual offence complainant’s PSH (whether with the
accused or a third party) may be relevant in a criminal trial in England and Wales. This depends on: how
relevance is defined and understood in the law of evidence of England and Wales, and which issue the
PSH evidence is alleged to relate to. In this section, a definition of relevance will be set out which, it will
be argued, is supported by case law. Following this, the potential relevance of a sexual offence com-
plainant’s PSH to a variety issues will be analysed, although no claim is made that this analysis exhausts
3. The term was originally coined by Redmayne (2003).
4. RvEvans, above n 2 at [48] (Hallett LJ).
5. RvA (No 2) [2001] UKHL 25.
Thomason 343

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