Procedural Amendments for Adducing Sexual Behaviour Evidence Under s. 41 of the Youth Justice and Criminal Evidence Act 1999
| Date | 01 October 2018 |
| Published date | 01 October 2018 |
| DOI | 10.1177/0022018318806409 |
| Author | Brian Brewis |
| Subject Matter | Case Notes |
The Journal of Criminal Law
2018, Vol. 82(5) 378–380
Procedural Amendments
ª The Author(s) 2018
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DOI: 10.1177/0022018318806409
Behaviour Evidence Under
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s. 41 of the Youth Justice
and Criminal Evidence
Act 1999
Practice Direction (CA Crim Div: Criminal Practice Directions 2015:
Amendment No.6) [2018] EWCA Crim 516
Section 41 Youth Justice and Criminal Evidence Act (YJ&CEA) 1999 severely restricts the ability of the
defence to ask questions or to adduce evidence concerning ‘any sexual behaviour of the complainant’
(s. 41(1)). The use of sexual behaviour evidence had attracted considerable controversy prior to the
enactment of s. 41. The provision in s. 41 intended to strike a more even balance between the interests of
sexual offence complainants, who should not be subject to the introduction of irrelevant evidence
concerning their previous sexual conduct, and the interests of defendants, who should be afforded the
opportunity to adduce probative material in the course of their defence. The sixth amendment to the
Criminal Practice Directions (CPD) 2015, supplementing the Criminal Procedure (Amendment) Rules
2018 SI 2018/132, amending, inter alia, CPD V 22A, came into force on 2 April 2018. CPD V 22A
provides detailed guidance concerning the handling of applications to adduce sexual behaviour evidence
in this controversial and complex area of the law.
Applications to Adduce Sexual Behaviour Evidence
Part 22 of the Criminal Procedure (Amendment) Rules 2018 sets out the application process for addu-
cing sexual behaviour evidence. Of particular importance is the requirement for the defence to give
notice of an intention to question the complainant or adduce evidence of his or her previous sexual
behaviour (Crim PR 22.4). Despite their existence, the notice requirements have not always been strictly
adhered to (See for example R v McKendrick [2004] EWCA Crim 1393 at [55]). A failure to follow the
correct application procedure can potentially amplify the distress suffered by sexual offence complai-
...
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