R v A (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD SLYNN OF HADLEY,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD CLYDE,LORD HUTTON |
| Judgment Date | 17 May 2001 |
| Neutral Citation | [2001] UKHL 25 |
| Court | House of Lords |
Lord Slynn of Hadley
Lord Steyn
Lord Hope of Craighead
Lord Clyde Lord Hutton
HOUSE OF LORDS
My Lords,
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.
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".
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.
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.
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.
The question certified by the Court of Appeal which gave leave to appeal to your Lordships' House is
"May a sexual relationship between a defendant and complainant be relevant to the issue of consent so as to render its exclusion under section 41 of the Youth Justice and Criminal Evidence Act 1999 a contravention of the defendant's right to a fair trial?"
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)).
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.
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.
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.
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
"So far as it is possible to do so, primary legislation =85 must be read and given effect in a way which is compatible with the Convention rights".
I was initially tempted to think that the words "at or about the same time as the event" could be given a wide meaning—certainly 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.
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.
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.
I agree with the statement in paragraph 46 of Lord Steyn's speech as to the effect of the decision today.
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
My Lords,
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.
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...
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