Sexual Behaviour Evidence and Evidence of Bad Character in Sexual Offence Proceedings: Proposing a Combined Admissibility Framework
| Author | Brian Brewis,Adam Jackson |
| Published date | 01 February 2020 |
| Date | 01 February 2020 |
| DOI | http://doi.org/10.1177/0022018319891260 |
| Subject Matter | Articles |
Article
Sexual Behaviour Evidence
and Evidence of Bad Character
in Sexual Offence Proceedings:
Proposing a Combined
Admissibility Framework
Brian Brewis
Northumbria University, UK
Adam Jackson
Northumbria University, UK
Abstract
This article critically evaluates whether the ‘rape shield’ legislation in England and Wales, as
currently contained in s 41 Youth Justice and Criminal Evidence Act (YJ&CEA) 1999, is fit for
purpose. The article addresses the impact of the case of R v Evans (Chedwyn) [2016] EWCA
Crim 452 which received a disproportionately high amount of media scrutiny and led to
subsequent calls for greater restrictions on sexual behaviour evidence. The article examines
possible reform proposals by Findlay Stark and Matt Thomason and the results of empirical
research conducted by Laura Hoyano before proposing the introduction of a ‘combined
admissibility framework’ for evidence of a complainant’s previous sexual behaviour and bad
character. The proposed framework seeks to retain the high threshold for the admissibility, in
particular, of evidence relating to a complainant’s previous sexual behaviour while introducing
a more holistic and straightforward model moving away from the strict categories approach
adopted by s 41 YJ&CEA 1999.
Keywords
Sexual behaviour evidence, s 41 Youth Justice and Criminal Evidence Act 1999, rape shield, bad
character, cross examination; consent
Corresponding author:
Brian Brewis, Northumbria Law School, CCE-1, Room 352, Northumbria University, Newcastle Upon Tyne, NE1 8ST, UK.
E-mail: b.brewis@northumbria.ac.uk
The Journal of Criminal Law
2020, Vol. 84(1) 49–73
ªThe Author(s) 2019
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DOI: 10.1177/0022018319891260
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Introduction
The decision of the Court of Appeal in R v Evans (Chedwyn)
1
(Evans), and the subsequent acquittal of
the appellant following retrial in October 2016, received extensive press coverage
2
and caused a great
deal of public concern. The judgment provoked significant and high-profile criticism and led to unsuc-
cessful attempts to introduce legislative measures, comprising, respectively, a Private Member’s Bill
3
introduced on 8 February 2017 and an amendment to the Government’s Prisons and Courts Bill intro-
duced on 23 March 2017.
4
The proposed legislation would have introduced significant amendments to s 41 Youth Justice and
Criminal Evidence Act (YJ&CEA) 1999. The Private Member’s Bill would have further restricted the
admission of evidence of the complainant’s sexual behaviour with third parties. The proposed amend-
ment to the Prisons and Courts Bill would have made sexual behaviour evidence inadmissible under any
circumstances.
5
The Attorney-General’s Office and Ministry of Justice subsequently conducted a review
into of the use of sexual behaviour evidence in over 300 cases.
6
Ultimately, the review concluded that a
change in the law was unnecessary and that ‘section 41 is working as intended’.
7
This finding was
subsequently supported by empirical research undertaken by Laura Hoyano on behalf of the Criminal
Bar Association. The research revealed that of 179 responses from CBA members ‘[n]ot a single
respondent considered that section 41 should be reformed to make it more restrictive’ (original
emphasis).
8
The decision of the Court of Appeal in the Evans case also prompted significant academic debate,
including exchanges between McGlynn and Dent and Paul in the Criminal Law Review
9
and other key
contributions made by Stark
10
and Thomason.
11
Dent and Paul call for recognition of the ‘progressive
and pragmatic nature of s.41’
12
and for proposed amendments to ‘be based on evidence, rather than
assumptions ...’.
13
By contrast, McGlynn opines that reform of this area of law is ‘urgently required’
and that, ideally, a ‘comprehensive revision of the current law ...from first principles’
14
is necessary.
Despite this, the consensus appears to be that the law on sexual behaviour evidence is both a ‘highly
controversial’ and ‘extremely (and unnecessarily) complicated area of law’.
15
This article will provide critical insight into the admissibility of evidence of a complainant’s previous
sexual behaviour under s 41 YJ&CEA 1999. Specific consideration will be given to issues raised in
Evans to determine whether the case provides an appropriate basis on which to propose reforms to the
1. R v Evans (Chedwyn) [2016] EWCA Crim 452.
2. Sandra Laville, ‘The Ched Evans Trial Showed How Rape Complainants Are Still Put in the Dock’ The Guardian (London 14
October 2016) <www.theguardian.com/society/2016/oct/14/ched-evans-trial-showed-how-complainants-are-still-put-in-the-
dock> accessed 10 October 2019.
3. Sexual Offences (Amendment) HC Bill (2016–17) [137].
4. Prisons and Courts Bill, Notice of Amendments NC1, 23 March 2017 <www.publications.parliament.uk/pa/bills/cbill/2016-
2017/0145/amend/prisons_rm_pbc_0323.1-2.html> accessed 10 October 2019.
5. ibid.
6. Ministry of Justice, Limiting the Use of Complainants’ Sexual History in Sex Cases (Cm 9547, 2017).
7. ibid 3.
8. Laura Hoyano, ‘Cross-Examination of Sexual Assault Complainants on Previous Sexual Behaviour: Views From the Bar-
risters’ Row’ (2019) 2 Crim LR 75–111.
9. See, Clare McGlynn, ‘Rape Trials and Sexual History Evidence: Reforming the Law on Third-Party Evidence’ [2017] 81(5) J
Crim L 367–92; Nick Dent and Sandra Paul, ‘In Defence of Section 41’ [2017] 8 Crim LR 613–27; Clare McGlynn,
‘Challenging the Law on Sexual History Evidence: A Response to Dent and Paul’ [2018] 3 Crim LR 216–28.
10. Findlay Stark, ‘Bringing the Background to the Fore in Sexual History Evidence’ [2017] Arch Rev 8, 4.
11. Matt J Thomason, ‘Previous Sexual History Evidence: A Gloss on Relevance and Relationship Evidence’ [2018] 22(4) Intl J
Evid Proof 342–62.
12. Dent and Paul (n 9) 627.
13. ibid.
14. Clare McGlynn, ‘Rape Trials and Sexual History Evidence’ (n 9) 367, 391.
15. Clare McGlynn, ‘Challenging the Law on Sexual History Evidence’ (n 9) 216, 228.
50 The Journal of Criminal Law 84(1)
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