The English Youth Justice and Criminal Evidence Bill was intended to restrict complainants’ sexual history in trials. The reason behind this restriction was that sexual history can only be used in limited situations, mainly when an issue in the trial is related to sexual behavior. Due to this bill, section 41 of the Youth Justice and Criminal Evidence Bill of 1999 (hereafter “the act”) established a prohibition on the accused not to adduce evidence or as cross-examination questions to the complaint related to the complaints sexual behavior. As provided for by the act, the defense can only adduce evidence or cross-examine the complainant on matters related to their sexual behavior only under exceptions provided for in section 41(2) of the act. In addition, exclusion is done is not permitting it would cause an unsafe-conclusion by the judge or jury on any relevant issues in the trial. To achieve this objective, section 41 of the act as limited the use of complainants’ sexual behavior as much as possible and even though it has achieved its intended objectives, it is also generated some judicial attitudes which would expectedly impact its purpose. This paper therefore sets to examine judicial attitudes pertaining section 41 of the act and how it affects its purpose.
Judicial attitudes towards section 41 YJCEA 1999 and reflection on its purpose
Section 41 of the act bans adducing evidence or cross-examination of the complaint by the defendant on complaints sexual history. This can only happen if the sexual evidence or the cross-examination is admissible under the four exceptions provided in subsection 41(2). Moreover, even when the evidence or the cross-examination has been made under the one of the four exception, the judge or the jury would still need to be satisfied that if the evidence or cross examination isn’t admitted it would render an unsafe conclusion on a issue by the jury. Under section 42 (1)(c) of the act, “sexual behavior” is defined to constitute any sexual behavior or sexual experience that does or doesn’t involve the accused. This definition therefore excludes anything that allegedly took place as part of the events that are subject matter to the trial. Sexual behavior is also defined as to include boastings, statement made, bragging or talking about sexual behavior by the complainant. In R v Mukadi, sexual behavior was defined to be a very easy to identify matter and that it was simply a matter of impression and common sense.
As provided for under section 42(a)(1), a relevant issue of sexual behavior is only admissible and to the trial and still, it has to be proved by the prosecution or defense in the trial. In case the use of sexual behavior is done as to impugn the credibility of the complainant as a witness, such issue is restricted and deemed irrelevant to the issue under the exceptions. This means, even if a matter pertaining sexual behavior of the complainant meet one of the four exceptions, but its primary objective for being used is to purge the complainant’s credibility, then such an issue is ruled to be not admissible. In R v Martin, the defendant sought to adduce evidence or prior sexual conduct with the complainant. The court held that, even though one of the aims of the adduced evidence was to impugn the complainant’s credibility, it was not the primary purpose and the evidence was being used to support evidence by the defendant.
Even though section 41 of the act is aimed towards limiting sexual history being used as evidence against the complainant, it doesn’t cover falsehood or false allegations the complaint made. The reason behind this is that, in such a case the evidence or cross-examination isn’t part of the complainant’s sexual history, but past lies. If the defendant states that the accusations made by the complainant are giants them are lies, then the defense can adduce evidence or examination on the complainants sexual behavior as stipulated under section 41 of the act. However, before such can be done, the judge must be satisfied that the defense has evidence supporting that the statement was made by the complainant and are false. In R v MH, the court held that the defense must have a proper and strong evidence foundation for asserting that the complainant’s previous statement was untrue. In R v Murray, the court explained that the strong and factual nature of proper evidence was crucial for concluding that the statement in question was a lie.
As argued by Leahy, section 41 is an example of a rule-bound scheme and probably one of the most significant shortcomings is the potential to infringe on the rights of the defendant. While it is agreed that the admissibility of sexual history should be regulated firmly, it should also be acknowledged that complainant’s sexual history bear the potential to be relevant for accused defense. Therefore, if the rule-bound scheme is designed to tightly restrict even relevant evidence, then it poses a clear conflict with the defendant’s right to fair trial. Indeed, this was the case in the wake of the introduction of section 41 and had to be challenged at the Central Criminal Court a day after it came to force with the outcome of this challenge being the decision of the House of Lords in R. v A. (no. 2).
Section 41 of the act bans adducing evidence or cross-examination of the complainant by the defendant on complaints sexual history. This can only happen if the sexual evidence or the cross-examination is admissible under the four exceptions provided in subsection 41(2). As provided for under section 42(a)(1), a relevant issue of sexual behavior is only admissible and to the trial and still, it has to be proved by the prosecution or defense in the trial. Even though section 41 of the act is aimed towards limiting sexual history being used as evidence against the complainant, it doesn’t cover falsehood or false allegations the complainant made. Probably one of the most significant shortcomings of section 41 is the potential to infringe on the rights of the defendant as was the section with section 41, but it was immediately challenged and the result was the decision of the House of lords in R. v A. (no. 2).
- Hey, Jennifer Elaine. Beyond R v A: Sexual History Evidence and the Reform of S.41, Durham University, 2012. Accessed on 25 February 2016 http://etheses.dur.ac.uk/5893
- Kibble, N. Uncovering Judicial Perspectives on Questions of Relevance and Admissibility in Sexual Offence Cases. Journal of Law and Society, 35: 2008, 91–107. doi: 10.1111/j.1467-6478.2008.00427.x
- Leahy, Susan. Whether Rules or Discretion? Developing a Best Practice Model for Controlling the Admissibility of Sexual Experience Evidence in Sexual Offence Trials, Irish Journal of Legal Studies, Vol. 4(1) 2014, 65-91.
- Mulcahy, Linda & Wheeler, Sally (eds), Feminist Perspective on Contract Law, Glass House Press, 2005. P. 5-16.
- Temkin, J. & Krahé, B. Sexual Assault and the Justice Gap: A Question of Attitude, Hart Publishing, Oxford & Portland, Oregon 2009. p. 149
- Youth Justice and Criminal Evidence Act 1999 s 41(1)(a) (Youth Justice and Criminal Evidence Act).
 Youth Justice and Criminal Evidence Act 1999 s 41(1)(a) (Youth Justice and Criminal Evidence Act)
 Kibble, Uncovering Judicial Perspectives on Questions , 2008, 91
 Youth Justice and Criminal Evidence Act s 41(1)
 Hey, Beyond R v A…, 2012.
 R v Mukadi  EWCA Crim 3765;  Crim. L.R. 373.
 Mulcahy & Wheeler, Feminist Perspective on Contract Law, 2005
 R v Martin  2 Cr App R 354.
 Youth Justice and Criminal Evidence Act s 41(3) – s 41(5)
 R v MH (2002) Crim L.R. 73
 R v Murray  EWCA Crim 618.
 Leahy, Whether Rules or Discretion? 2014, 74
 Temkin & Krahé, Sexual Assault and the Justice Gap, 2009. p. 149
 R v A (No.2)  1 AC 45 (Lord Steyn, 27)