Were it not for the House of Lords decision in R v A the provisions on sexual history evidence in YCJEA 1999 would have failed to strike a satisfactory balance between the interests of defendants and complainants.
The objective of this essay is to dissect the statement as to whether the House of Lords decision in R v A on sexual history evidence in Youth Justice Criminal Evidence Act, (YJCEA), 1999 in reality strikes a balance between defendants and plaintiffs and thereafter make a critical evaluation as to whether the rules on sexual history evidence are satisfactory.
The starting point for discussion in this essay has to be R v A (No2)  UKHL 25 for the reason it would otherwise be not possible to assess the impact of provisions of S.41 of YJCEA read with Human Rights Act, 1998 (HRA).
The facts of the case are that on 14 June, 2000, the defendant was alleged to have been raped the complainant and as a result of which in December, 2000, he was indicted to stand trial in the Crown Prosecution Court on the charge that he had committed an offence of rape.
The defendant’s defence took a position that the sexual intercourse took place with the consent of the complainant and further argued that the complainant had initiated consensual sexual intercourse which had commenced on 14 January, 2000; such a relationship was part of a continuing sexual relationship which in particular was going on in his flat between 26 May 2000 and 14 June, 2000 with the last instance of such sexual activity taking place a week before 14 June, 2000 when the rape was said to have been committed. The issue arose when the Counsel for the defendant sought leave for cross-examining the complainant about the alleged previous sexual relationship between them in order cull out evidence about that.
In the matter of cross examining, the trial judge ruled that even though the complainant could be asked any questions of any sexual activity within a last few hours of the incident happening, she could not be questioned of any previous relationship. Nonetheless, the trial judge also opined that his ruling may breach the provisions laid down under Article 6, viz, the right to fair trial under the European Convention of Human Rights as implemented in the Human Rights, Act, 1998. As a result, the defence was granted permission to appeal to the Court of Appeal, on which Rose LJ opined that the evidence of sexual activity with the defendant was permissible under Section 41 (3) ( a), YJCEA, 1999 as it went to the defendant’s belief of consent, but further granted the appeal to the House of Lords by posing the question “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 fair trial?”
The question before law lords related to the issue of the rights of defendants for fair trial. On this, they had pronounced their verdict by upholding the rights of defendant and holding against the legislation by giving judicial discretion its place by further stating that when it comes to sexual history evidence, it should be left to the judicial discretion. In other words, it is for the trial judges to draw the line when it comes to sexual history evidence.
It can be interpreted that the House of Lords made a distinction between stranger rape (real rape) and other rapes where the defendant was previously known to the complainant. The legislation may serve a purpose when it comes to real rape, the one that could take place with third parties, but does not meet with the rights of the defendants in relation to fair trial for the reason that S.41 (3) (c) of YJCEA, 1999 should be interpreted along with S.3 of the HRA, 1998 and on this ground they had dismissed the appeal of the Crown Court. In the process, they had also clearly answered the question that evidence in regard to the complainant’s sexual history would be admissible, where in, when in particular it was relevant of the issue of consent and to exclude it would render the trial to become unfair. They decreed that this deemed to be a matter for the trial judges to determine.
It can be stated from the foregoing discussion that the House of Lords decision in R v A on sexual history evidence in Youth Justice Criminal Evidence Act, (YJCEA), 1999 in reality strikes balance between defendants and plaintiffs.
2.2. A critical evaluation on the rules of sexual history evidence
This section of the paper discusses as to how the sexual history evidence has been treated in the common law, thereafter go on to investigate how the stand of the law on the inclusion of this evidence changed subsequent to the submission of Heilbron Report in the year 1975 which catalysed in the year 1976 into Sexual Offences (Amendment) Act. In the process, it would evaluate the theories and arguments related to these developments, especially the creation of Section 2 that applies to the use of sexual history evidence.
Under the common law, the use of a woman’s sexual history in rape trials seems to have crystallised in the 19th century. According to Temkin such evidence could be brought into two distinct categories, wherein the first one relates to an argument that the complainant cannot be considered as a trustworthy witness and the second one surrounded the issue as to whether she had consented to sexual intercourse with the defendant on the occasion in question. According to Kibble, the premises that evidence of prior sexual relations with the defendant would be admissible seem to be rarely challenged. From the decisions arrived in regard to R v Riley and R v Crockcroft, it can be concluded that wherever there is evidence to contradict the denial of complainant of previous sexual intercourse with the defendant, it is admissible.
However, when it came to evidence of sexual history and cross examination wherein the offence was supposed to have been committed by a third party, the law stood on a different footing. Evidence relating to the sexual relationship in the past was considered relevant to determine the credibility of the woman in question which was put by Temkin as something to do with the lack of truthfulness or reliability as a witness. Even though the cross examination about previous relationship is allowed to be carried out by defence, the answers given by the complainant would have to be treated as final and further evidence cannot be pulled out to contradict her.
The R v Morgan case had set the background for rape law even though it was not focused on the use of sexual history evidence. The decision on the case was labelled as an event that sparked a second feminist activism pertaining to the rape law. Such an upsurgement arose out of the decision of the House of Lords which declared to the effect that a man could not found guilty of rape if he had an honest belief, however unreasonable it may be, that she was consenting. The decision caused such a widespread concern that it resulted in the appointment of Heilbron Committee with a mandate to give consideration to the law of rape and advice the Home Secretary of the changes in the law considered to be desirable. The report was critical of the manner in which the complainant’s sexual history was put in use to prejudice the jury to twist the case against her. The committee recommended when it comes to history of sexual evidence, a distinct difference should be made between the defendant’s previous known and third party (and hence unknown to the complainant). Nonetheless, it also opined that evidence that revolves around only to create a negative opinion of the complainant should not be allowed for the reason her general character cannot be considered as an indicator to determine as to whether she had consented on any given occasion. It felt that there is a lack of statutory definition of rape law which has led to its evolvement through case laws only. The committee came to the conclusion that the evidence available to the defendant should be allowed and the restrictions in this regard should be enforced by the judge. This highlights the limitation of the report in so far that it seemed to relying solely on the discretion of the judge in making a decision as to what should and should not be allowed in.
Section 2 did carry some of the similar formula as advocated by the Heilbron Committee which is evident from the fact that it gave the judges the ultimate power when it came to deciding which evidence would be allowed and which would be excluded. This brought it to the status of a broad ‘discretionary legislation’.
A look at the empirical evidence in regard to the manner Section 2 was interpreted by judiciary and from the available opinions of the scholars show that it was unsatisfactory for the reason it used the word ‘reasonably’ when the need was for more decisive statement and that operative provisions of it was making way to irrelevant questions which were aimed at discrediting the complainant. The outcomes in the cases of R v Lawrence and R v Mills attest to this.
Easton  points to the fact that whenever evidence was refused, the route of appeals was followed to gain a successful entry for allowing it. It also proved the survival of myths and stereotypes of the old laws.  This led to the formation of an impression that victims of rape law who were already victimised were further victimised by the criminal judicial system.
The dissatisfaction arising out of Section 2 led to the Home Office report of 199 9and paved the way for the implementation of S.41 of YJCEA, 1999.
When it comes to as to why a new legislation in this area became imperative, there are two extreme opinions among the scholars. For instance, according to Birch, it arose arising out of the failure of the courts to give proper effect to Section 2, where as Temkin views this as haring back to the old days when Section 2 had prevailed which is seen as a wishful thinking. The need for the law came on the realisation that the rules of the admissibility of the evidence should be in consonance with the definition of rape contained in the Sexual Offences Act, 1956, which has sprung from the fact that there cannot be two inconsistent statues prevalent at any point of time.
The focus of Section 41 was on providing detailed legislative guidelines to the judiciary in order to provide an idea to the judges when they may use their discretion which incidentally is the approach followed in other countries as for example, Australia, Canada and Scotland. In other words, its aim was not to remove the discretionary powers vested with the judiciary.
The moot question here is whether YJCEA has achieved its objective in relation to what it wanted to do with regard to evidence of sexual history. The answer appears to be no for the reason the original provisions were diluted considerably on the ground that they were too restrictive. An evidence of this can be done in the changes made to clause 41 (3) (b) (i) which if it had been allowed in its original format would have ONLY allowed behavioural evidence within 24 hours of the alleged incident. This was replaced with “at or about the same time”. A similarity element was also added in the amended Bill on a presumption that it would be unreasonable to preclude evidence which watered down the view of the government that a complainant’s sexual history in not relevant for the consideration of the treatment of the issue of consent on the occasion in point.
From the above it becomes clear that the aim of the legislation under reference could not be achieved in a satisfactory manner to a degree in reality which the government might have wanted to realise its intentions.
This legal essay considered two issues as provided in the introduction and sought to provide answers to both of them. It emerges from the discussions that the issue of rape is more of a social issue for which legal prescriptions in toto is difficult to be found.
Adler, Zsuzsanna, Rape on Trial (Routledge & Kegan Paul Ltd, New York 1987
Birch, Di, ‘Rethinking Sexual History: Proposals for fairer Trials’ (2002) Crim LR 531
Easton, Susan, ‘The Use of Sexual History Evidence in Rape Trials’ in Childs, Mary & Ellison, Louise,
‘Feminist Perspectives on Evidence’ (Cavendish Publishing, London 2000) at p. 169
Kelly, Temkin and Griffiths, ‘Section 41: an evaluation of new legislation limiting sexual history evidence in rape trials.’ Home Office Report 2006 at p 12
Kibble, Neil, “The Relevance and Admissibility of Prior Sexual History with the Defendant in Sexual Offences Cases” (2001) 32 L. Cambrian Rev 27 at p. 32.
Lees, Sue, Carnal Knowledge Rape on Trial (2nd Edn The Women’s Press, London 2002)
McGlynn, Clare, Feminist Activism and Rape Law Reform in England and Wales: A Sisyphean Struggle? In McGlynn & Munro, ‘Rethinking Rape Law’ (Routledge – Cavendish, 2010 Temkin, Jennifer, Rape and the Legal Process (2nd Edn Oxford University Press, Oxford 2002)
Temkin, Jennifer ‘Regulating Sexual History Evidence – The Limits of Discretionary Legislation’ (1984) 33 I.C.L.Q p. 942.
Temkin, Jennifer, ‘Sexual History Evidence – Beware the Backlash’ (2003) Crim LR 217 at p 218
  R v A UKHL 25
 Temkin, Jennifer ‘Regulating Sexual History Evidence – The Limits of Discretionary Legislation’ (1984) 33 I.C.L.Q p. 942.
 Kibble, Neil, “The Relevance and Admissibility of Prior Sexual History with the Defendant in Sexual Offences Cases” (2001) 32 L. Cambrian Rev 27 at p. 32.
 18 Q.B.D.
 (1870) 11 Cox C.C. 410
 Report of the Advisory Group on the Law of Rape (the Heilbron Committee) Cmnd 6352 (1975) at para 101.
 (1975) 2 WLR 913
 McGlynn, Clare, Feminist Activism and Rape Law Reform in England and Wales: A Sisyphean Struggle? in McGlynn & Munro, ‘Rethinking Rape Law’ (Routledge – Cavendish, 2010).
 Easton, Susan, ‘The Use of Sexual History Evidence in Rape Trials’ in Childs, Mary & Ellison, Louise, ‘Feminist Perspectives on Evidence’ (Cavendish Publishing, London 2000) at p. 169
 Kelly, Temkin and Griffiths, ‘Section 41: an evaluation of new legislation limiting sexual history evidence in rape trials.’ Home Office Report 2006 at p 12
 (1977) Crim. L. R. 492
 (1978) 68 Cr App R 327 (CA)
 Temkin, Jennifer, Rape and the Legal Process (2nd Edn Oxford University Press, Oxford 2002); Lees, Sue, Carnal Knowledge Rape on Trial (2nd Edn The Women’s Press, London 2002) and Adler, Zsuzsanna, Rape on Trial (Routledge & Kegan Paul Ltd, New York 1987
 Birch, Di, ‘Rethinking Sexual History: Proposals for fairer Trials’ (2002) Crim LR 531
 Temkin, Jennifer, ‘Sexual History Evidence – Beware the Backlash’ (2003) Crim LR 217 at p 218
 The Home Office Minister Lord Williams of Mostyn, HL Deb 15 December 1998 cc238-9