The Interpretation of s. 41 of the Youth Justice and Criminal Evidence Act 1999 and the Impact of R v A (No 2) ([2002] 1 AC 45) Armando Andrade v R [2015] EWCA Crim 1722
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| DOI | http://doi.org/10.1177/0022018316646631 |
| Subject Matter | Court of Appeal |
2 ECHR places a positive obligation on the state to safeguard the lives of its citizens. The application
brought on behalf of DC raised the question of whether the amendment to self-defence in relation to
householders introduced by s. 76(5A) of the 2008 Act was compatible with Article 2 ECHR, or, as the
court in the present case expressed, ‘does the criminal law of England and Wales effectively deter
offences against the person in householder cases?’(at [58]).
Although it was contended on behalf of DC that the effect of s. 76(5A) was to alter the common law
position in relation to self-defence in householder cases, the court in the present case concluded other-
wise. As identified above, the court determined that the effect of s. 76(5A) was merely to ‘refine’ the law
of self-defence in relation to householders (at [34]) offering ‘ ...a discretionary area of judgment to the
jury as to whether if the force was disproportionate, it was nevertheless reasonable in the circumstances’
(at [61]). The court concluded that ‘the test of reasonableness ...in private party householder cases, even
after the minor qualification of s. 76(5A), would not cause a breach of the Article 2(1) positive
obligation ...’ (at [63]) and, on that basis, there was no weakening of ‘the capacity of the criminal law
of England and Wales to deter offences against the person in householder cases’ (at [62]).
Adam Jackson
The Interpretation of s. 41 of the Youth Justice
and Criminal Evidence Act 1999 and the Impact of
RvA (No 2) ([2002] 1 AC 45)
Armando Andrade vR[2015] EWCA Crim 1722
Keywords
Rape, sexual history evidence, admissibility, s. 41 Youth Justice and Criminal Evidence Act 1999, fair trial
The appellant appealed against his conviction for rape on two grounds. The first ground of appeal
(to which this case note relates) was that the judge had wrongly excluded evidence of a previous
consensual sexual encounter between the appellant and the complainant (C). The second ground of
appeal (which is not considered in this case note) concerned the admissibility of evidence about two text
messages sent by the appellant’s friend (D) to C shortly after the alleged rape.
C had been drinking in a pub with her friend (M) and a man with whom C had engaged in a brief
sexual encounter two days earlier. C began texting another man (D) and left to visit D’s flat. On arrival at
the flat she was taken upstairs to a bathroom where she had consensual sexual intercourse with D. The
appellant, who was D’s friend, then had sexual intercourse with C in the bathroom, which C maintained
was against her will. Upon leaving, C telephoned M, who described C as being in a distressed state. M
asked C if she had been raped to which C replied that she had. M contacted the police who collected C
from a nearby bus station. The appellant was arrested, along with D and two other men who had been
present at the flat. No further action was taken against anyone other than the appellant. It was the
Crown’s case that the appellant had forced C to have sexual intercourse against her will. The appellant
contended that the intercourse was consensual.
During a police interview, the appellant said that he had met C on the stairs of D’s flat and they started
to chat. The appellant also maintained that he had met C on a previous occasion during which consensual
sexual intercourse had taken place. He stated that during his conversation with C, it became clear that she
Court of Appeal 169
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