27th March 2017

There has been much debate on the legal twittersphere this weekend following the tabling of an amendment by Harriet Harman (the former Leader of the House of Commons and former acting leader of the Labour party) to the government’s Police and Courts Bill. The amendment would make changes to s.41 of the Youth Justice and Criminal Evidence Act 1999 and has caused much controversy.

What is s.41?

S.41 of the Youth Justice and Criminal Evidence Act creates a presumption against the Defence adducing evidence of the complainant’s previous sexual conduct in a trial for a sexual offence. Such evidence can only be used in proceedings with the leave of the Judge and if certain qualifying criteria are met. This was designed to stop situations where  the  complainant was being blamed for his or her conduct and where the defence sought to question their credibility as a witness by reference to their previous sexual behaviour.

What is being proposed?

The proposed amendment would increase the scope of the prohibition so that it was no longer possible to cross examine the complainant about their previous sexual conduct in any circumstances whatsoever. The discretion of the judge to allow the evidence to be admitted would be removed and in no circumstances, would the lawyers acting for the defendant ever be allowed to ask the complainant about such matters.

Why the controversy?

Harriet Harman, in defending the proposed amendment, has referenced the case of the former footballer Ched Evans who was initially convicted of rape but subsequently acquitted after his second appeal ordered a retrial. At that retrial evidence (which had been unavailable at the first trial) was put to the complainant about her engaging in sexual conduct with another male which (the defence successfully argued) was so similar to the description given by Evans as to exclude the possibility of coincidence. The decision of the court of appeal attracted criticism at the time of the acquittal and has informed the proposed amendment. This is clearly a difficult area and one that the Criminal Justice system has been attempting to deal with. It is inarguable that in the past there have been numerous cases of young or vulnerable witnesses being treated with hostility and contempt whilst in court.

This can have a devastating impact on victims of crime and discourage others from reporting rape. The position has changed a great deal in recent years. Firstly there is now wide spread use of Special Measures in cases involving children or in cases of sexual offences. This includes for example the use of television link to give evidence from a different room in the court building or even away from the court altogether.

Secondly Judges will now keep a much firmer grasp of the cross examination of complainants and will ensure the questions are relevant and appropriate.

Thirdly S.41 as it stands has already drastically reduced the scope to cross examine a complainant about previous sexual conduct and whilst not perfect has generally resulted in the court getting the right balance between excluding irrelevant evidence  but ensuring relevant and important material is admitted.

Whilst no doubt well intentioned I have concerns that if implemented such a blanket ban would cause serious injustice. Defendants would be unable to refute or challenge evidence they said was untrue and important explanatory evidence may very well be kept from jurors. I have no doubt witnesses still find the process of going to court daunting and if you are a victim of crime then the process may very well be traumatic. However no solution to these difficulties is acceptable if it compromises a defendant’s ability to have a fair trial. In my view the proposed amendment would  do just that.

Blog by Gerry Scott, Criminal Solicitor