s.41 YJCEA 1999: When can questions regarding previous sexual behaviour be asked in court?

Ched Evans’ not guilty finding of rape after a re-trial which permitted evidence concerning the sexual behaviour of the complainant has proved to be particularly emotive amongst members of the public. Politicians have responded with suggested reforms in order to alleviate these concerns, though it appears that the current law governing this type of evidence has been misunderstood. This short post aims to explain what the law concerning this type of evidence is, the restrictions it places, and why it should not be abolished.

Facts

Professional football players Ched Evans and Clayton McDonald were co-defendants, and each faced a charge of rape in relation to the complainant, C, who is anonymous, in April 2012. McDonald and C met on the evening of 29^th May 2011. McDonald informed Evans he was returning to his hotel with C. McDonald took C back to his hotel room. Evans went to McDonald’s room, and upon seeing McDonald and C having sex, Evans joined in.

 

C had been drinking, and whilst she did not assert she had been raped, she had no memory of what had occurred that night. The pair were charged with rape, and both pleaded not guilty on the basis that they both reasonably believed C was consenting. McDonald was acquitted at trial, but Evans was found guilty, receiving a 5 year custodial sentence.

Evans appealed his conviction in 2012, but leave was refused by the Court of Appeal. He later produced fresh evidence before the Criminal Cases Review Commission and his conviction was later quashed on the basis that the fresh evidence rendered it unsafe. The fresh evidence produced involved two men who stated that C had used very similar instructional phrases and used a very similar sexual position to indicate her consent. The two incidents described by the new witnesses occurred independently, the first on 28^th May 2011, and the second around two weeks after the 29^th May 2011.

A retrial of one count of rape took place after Evans’ conviction was quashed, and the jury returned a unanimous verdict of not guilty on October 14^th 2016. The fresh evidence was able to be adduced under s.41(3) Youth Justice and Criminal Evidence Act 1999 (YJCEA), and was used by the defence to demonstrate that C was consenting to sex and that Evans had reason to believe C was consenting.

S.41 Youth Justice and Criminal Evidence Act 1999

Many news outlets and commenters on social media have expressed concern that Ched Evans’ case demonstrates that evidence concerning previous sexual behaviour is permitted, and be can be used to discredit the integrity of the complainant. However, questions concerning the sexual behaviour of a complainant are strictly prohibited. Only in rare and exceptional circumstances, set out in s.41 YJCEA, can such evidence be admitted.

In Evans’ case, s.41(3) was considered by the judge, and permission was given for such evidence to be used. S.41(3) permits evidence to be used when that evidence relates to an issue of consent, and involves the sexual behaviour of the complainant that is ‘so similar to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event, that the similarity cannot reasonably be explained as a coincidence.’

Using this provision at the Court of Appeal, the defence successfully argued from the fresh evidence that things said and done by C, around the date in question, were so similar that they could not reasonably be explained as a coincidence. At the re-trial, the confidence of the jury’s deliberations is strictly protected, so it is not known how they reached their conclusion of not-guilty. However, as the jury would need to be sure that C did not consent, and that Evans did not reasonably believe that C gave consent, it is possible, and perhaps even likely, that the usage of the fresh evidence made the jury unsure of one, or even both of those two issues.

Assessment of s.41

The criticism of the usage of s.41 in this instance appears to be based on the fact that it permits the jury to reach two (false) conclusions. That women are less deserving of belief if they are sexually promiscuous, and that women are more likely to consent to sex if they are sexually promiscuous. As s.41 expressly prohibits this, it is very difficult to reconcile this argument. As demonstrated above, the so called ‘gateways’ in s.41, and particularly the one used in Evans’ case, are exceptionally difficult to satisfy, and require a very precise kind of evidence. It is not merely the case that any sexual evidence can be admitted, nor can it be used to suggest the the myths stated above are true.

Some suggested reform has proposed that the mechanism for admitting evidence of the kind referred to in s.41(3) should be scrapped altogether, establishing a total prohibition on evidence of sexual history in such a case. Presumably, the logic from this is that certain evidence of sexual behaviour can never have evidential value. This would be an odd position, as Evans’ case demonstrates that such evidence can hold evidential value. Referring to s.41 in R v A (No.2), Lord Steyn stated that excluding ‘such material creates the risk of disembodying the case before the jury. It also increases the danger of miscarriages of justice.’ As this type of evidence can only be used where a conviction would be unsafe without its use, a complete prohibition of this evidence will inevitably prohibit evidence that could avoid an unsafe conviction. Abolishment of s.41(3) therefore, would lead to unsafe convictions. 

To enact such a reform could potentially create a much wider problem, and would arguably have a highly adverse effect on the prosecution and complainant. Where evidence that might prevent an unsafe conviction is prohibited, a natural consequence from this is that a defendant may be prevented from receiving a fair trial. Article 6 of the European Convention of Human Rights protects the right to a fair trial, as does s.4 of the Human Rights Act 1998. A reform creating an absolute restriction of such evidence is highly likely to create a breach of Art 6 of the ECHR. The potential consequences could be highly undesirable for complainants, such as trials collapsing due to the impossibility of the defendant receiving a fair trial. Additionally, there may be consequences in wasting government resources in enacting law which would be incompatible with Art 6. 

The two main suggestions for reform have come from Harriet Harman MP, proposing a complete restriction of sexual history evidence, and Liz Saville-Roberts MP, proposing, what appears to be a discretionary restriction on sexual history evidence.

A detailed critique of Harriet Harman’s proposal can be found here:

https://inews.co.uk/opinion/harriet-harmans-proposal-keep-sexual-histories-court-will-put-innocent-people-prison/

And a criticism for Liz Saville-Robert’s proposal can be found here:
https://www.kingsleynapley.co.uk/insights/blogs/criminal-law-blog/proposed-reforms-regarding-the-admissibility-of-complainants-sexual-history-are-fundamentally-flawed

Conclusion

Unfortunately, it appears that the widespread condemnation of the mechanisms s.41 provides stems from a misunderstanding of how the Act works. Genuine objections to how such evidence should be used in order to prevent false conclusions about female sexual behaviour is already illegal, and strictly prohibited in s.41. Whilst rejection of the myths surrounding sexual behaviour should be applauded, it is important not to allow such misconceptions about the current legislation and its operation support poor foundation for reform. Whilst rejection of the myths surrounding sexual behaviour should be applauded, it is important not to allow the same poison to infect the mind of the public when understanding how certain legislation works. Common trust that s.41 balances fairness will be reinforced through greater comprehension of how it operates in court, even where it produces results which are unexpected or deemed undesirable by the media. Equally important is the preservation of the gateways ins.41, as to abolish them significantly increases the possibility of producing unsafe convictions. 

Has s.76 of the Serious Crime Act 2015 failed?

The Guardian has reported[1] that s.76 of the Serious Crime Act 2015, which was made law on 29 December 2015, has produced just 62 prosecutions in the 8 months since it was brought into force. The new law created the offence of engaging in controlling or coercive conduct in an intimate or family relationship. It is primarily aimed at dealing with non-violent behaviour in such a relationship, but violent behaviour is nonetheless included in the offence. This post aims to look at some of the criticism the law has attracted, as well as why there has only been a very small number of prosecutions.

The Law

S.76 is entitled ‘controlling or coercive behaviour in an intimate or family relationship’, and covers the following situation.

(1) A person (A) commits an offence if—

(a) A repeatedly or continuously engages in behaviour towards another person (B) that is controlling or coercive,

(b) at the time of the behaviour, A and B are personally connected,

(c) the behaviour has a serious effect on B, and

(d) A knows or ought to know that the behaviour will have a serious effect on B.

The offence is triable either way, carrying a maximum sentence of 5 years imprisonment. A statutory defence is provided for in s.76(8), where the perpetrator shows that the relevant acts committed were done in the belief that it was in the victim’s best interests, and the behaviour was objectively reasonable. The defence in s.76(8) does not apply if the behaviour made the victim fear violence would be used.[2]

The Guidance

What is ‘controlling or coercive’ is not precisely defined. The Home Office has published guidance called Controlling or Coercive Behaviour in an Intimate or Family Relationship: Statutory Guidance Framework (December 2015)[3] which provides a non-exhaustive list of examples of what behaviours are associated with coercion or control.

This list includes the following:

·       isolating a person from their friends and family;

·       depriving them of their basic needs;

·        monitoring their time;

·      monitoring a person via online communication tools or using spyware;

·      taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep;

·      depriving them of access to support services, such as specialist support or medical services;

·      repeatedly putting them down such as telling them they are worthless;

·      enforcing rules and activity which humiliate, degrade or dehumanise the victim;

·      forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities;

·      financial abuse including control of finances, such as only allowing a person a punitive allowance;

·       threats to hurt or kill;

·      threats to a child;

·      threats to reveal or publish private information (e.g. threatening to ‘out’ someone).

·      assault;

·      criminal damage (such as destruction of household goods);

·      rape;

·      preventing a person from having access to transport or from working.

Also contained in the guidance is a more general description of what controlling and coercive behaviour is.

Controlling behaviour covers a ‘a range of acts which are designed to make a person subordinate and/or dependant by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

Coercive behaviour is a ‘continuing act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim, including ‘honour’ based violence, FGM, forced marriage, and victims are not confined to one gender or ethnic group.

Why was the law created?

It will be immediately obvious to many that several offences included in the list above are already criminalised. Rape, assault, criminal damage, threats to hurt or kill are perhaps the most obvious, having specific offences to themselves. The other behaviours included are less obvious as to their pre-existing criminality, though in order to have a ‘serious effect’ on the victim, as per s.76(1)(c), controlling or coercive behaviour is defined as fearing the use of violence on at least two occasions or they have been caused serious alarm or distress which has a substantial adverse effect on the victim’s usual day-to-activities. The former strongly resembles that of the definition in the Protection from Harassment Act 1997, so evidently some of the less apparent criminal behaviours may be caught by other legislation.

Year on year, prosecutions for offences related to violence against women, including domestic abuse, have seen a dramatic increase. For rape, sexual abuse and domestic abuse, prosecutions have rose by a record 18.3% from the previous year, with convictions rising by 16.9%. Consequently, a £3m initiative to tackle violence against women and girls was launched by the Home Office in 2016. The Government’s 2014 consultation on domestic abuse suggested that the Police have responded inadequately to non-violent domestic abuse, and that criminalising coercive and controlling behaviour would encourage victims to report it and help them identify behaviour that is wrong.[4] The offence created in s.76 was intended to ‘close the gap’[5] according the Home Secretary, where law covering harassment and stalking does not cover controlling or coercive behaviour.

Why could the numbers be so small?

First, the most obvious explanation might be that as the majority of behaviour caught by s.76 is already covered extensively by existing legislation, the remaining cases where prosecution is appropriate may be relatively small. Nick Dent of Kingsley Napley suggests the low number of prosecutions may even suggest that the act is being prosecuted in proportion to the gap it intended to close.[6] Whilst the Act includes a broad range of criminal offences, it would be logical for the CPS to use the existing, established offences, which have been developed with ample case law, rather than s.76. This would provide a more certain prosecuting decision, improve the chances of conviction.

Second, even where the offence is appropriate, prosecutors may be less willing to use the offence because it is new and comes with an inherent uncertainty. Related to the point above, as the offence is just 8 months old, both the police and the CPS will be less clear as to the ambit of the offence, and how it should be applied. This is not solely related to the offence’s age, but also to what it criminalises.

Violent behaviour in domestic abuse, for example, is likely to be far clearer to an investigation, with a higher likelihood of forensics and visual evidence being available. Behaviours which are criminalised under s.76, even with the guidance, are far more difficult to assess in terms of their criminality. The effect of a punch will inevitably be clearer than the effect of several statements contributing to psychological harm. In addition, such behaviour is perhaps more likely to encounter evidential difficulties, as a case is likely to rely solely on witness testimony, rather than photographs of injuries in a case of violence behaviour. This is not a criticism of the offence itself, but may be an explanation as to why a small number of prosecutions are brought.

Third, prosecutions in cases of domestic violence and under s.76 will heavily rely on the willingness of the victim to assist the prosecution. Even where a case of domestic abuse that involves violence could be brought without the assistance of the complainant, using, for example, photographs of injuries, it would still be highly unlikely to succeed without the evidence of the victim themselves. With a case brought under s.76, a prosecution without the evidence of the complainant would be almost impossible, as the court would not be able to hear a first hand account of what effect the behaviour had on them.

Due to domestic abuse cases involving a relationship of two people, complainants typically withdraw their support for a prosecution case before a trial has even begun. This may be due to a myriad of reasons, such as an imbalanced power dynamic between the defendant and complainant or a change in the relationship’s circumstances. In addition, where such behaviour has taken place, a complainant may simply not have the courage to assist a prosecution and provide a fair trial. Whilst an unfortunate reality, a complainant’s love for a defendant, despite the abuse they suffer, will inevitably be a reason for a withdrawal of support for a prosecution case. This factor may have also contributed to what appears to be a small number of prosecutions under s.76. 

Is it bad law?

It has been suggested that s.76 encroaches too heavily on intimate relationships in criminalising controlling and coercive behaviour. The Secret Barrister argues that s.76 suffers from enormous difficulties of enforcement, but that it is also too paternalistic, and wrongly criminalises relationships that are unhealthy. He states people in a liberal society ‘must be free to pursue and endure’ relationships that are toxic, ‘as long as it is their choice’.[7] He continues by saying that state should not criminalise deviations from an ideal of a perfect relationship, and that whilst some controlling and coercive relationships result in violence, many others do not.

Surprisingly, concern has been shared by the CEO of Refuge, Sandra Horley, who argued that the criminalisation of coercive behaviour could have ‘unintended consequences’,[8] referring to the wide ranging behaviours s.76 could potentially criminalise. She furthers her argument to state that the existing criminal legislation on domestic abuse is not being enforced properly, and that creating a new offence would not solve that. Clearly, s.76 requires police to go further in their investigations, as what is caught by the new offence will not be as apparent as abuse involving violence. With deep cuts to the police force and to the criminal justice system, the difficulty of enforcing s.76 is compounded further.

                                                                                                                               

There has, however, been support for s.76, calling it ‘an undoubtedly important step’ in recognising controlling and coercive behaviour as a form of abuse.[9]  Dr Weare of Lancaster University, though supportive of the legislation, criticises the inadequacy of resources that are available to domestic abuse victims, particularly for women who are in need of legal aid in family law and civil remedies, but require evidence of domestic abuse to obtain it. Evidence of coercive or controlling behaviour would be inherently more difficult to obtain than abuse which involves violence. Whilst these criticisms do not go directly to s.76, despite the government prioritising the issue, the general lack of funding to tackle domestic violence seems to be obscured by new legislation rather than increasing an allocation of resources.

Despite there being only 62 prosecutions, it does not necessarily follow that a law which has produced a small number is necessarily an inadequate one, or that is improperly resourced. Whilst many would attribute success to a law which garners a large number of prosecutions, this only proves that many are breaking that law, and not, as perhaps in reality many might hope, that it is acting as a deterrent. The vagueness and vastly wide ambit of s.76 perhaps does relatively little in providing a certainty as to what people should not be doing in an intimate relationship. Thus, s.76’s significance as a deterrent is arguably very limited.

Conclusion

The relatively low number of prosecutions may be partially explained by the narrow type of behaviour it criminalises and the difficulty of establishing certainty with a new offence may lead prosecutors to favour existing legislation which could provide a higher chance of conviction. The vagueness of what behaviour the act criminalises presents issues, increasing the uncertainty, possibly resulting in reluctance to use s.76. Problems intrinsic to all domestic abuse cases will be just as prevalent in prosecutions under s.76 as they are in domestic abuse cases involving violence. Securing the continued and unwavering support of the complainant is crucial, yet tremendously difficult.

Whilst it is difficult to determine whether s.76 is inappropriate, its enforceability is its Achilles heel. A largely inadequate enforcement of the existing legislation relating to both criminal and civil law is highly unlikely to be resolved with further legislation, which would require significant increases to the robustness of the police force. At a time when the police force and criminal justice system as a whole is suffering from a severe lack of resources, adequately prosecuting domestic abuse cases in addition to the demands of s.76 is highly unrealistic. Though the numbers are expected to the increase as prosecutors and police forces become more familiar with the offence and the type of behaviour it criminalises, it is very unlikely that a significant increase will be seen unless there are dramatic increases to the Ministry of Justice’s budget.  

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[1] https://www.theguardian.com/society/2016/aug/31/police-failing-to-use-new-law-against-coercive-domestic-abuse

[2] S.76(10) Serious Crime Act 2015

[3] https://www.gov.uk/government/publications/statutory-guidance-framework-controlling-or-coercive-behaviour-in-an-intimate-or-family-relationship

[4] Home Office, Strengthening the Law on Domestic Abuse, pg 9 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/344674/Strengthening_the_law_on_Domestic_Abuse_-_A_Consultation_WEB.PDF

[5] Home Office, Violence Against Women and Girls: Written Statement  https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2014-12-18/HCWS155/

[6] https://www.kingsleynapley.co.uk/insights/blogs/criminal-law-blog/controlling-or-coercive-behaviour-in-an-intimate-or-family-relationship-preparing-for-the-new-offence

[7] https://thesecretbarrister.com/2016/09/01/the-criminal-law-has-no-business-interfering-in-bad-relationships/

[8] https://publications.parliament.uk/pa/jt201415/jtselect/jtrights/106/10608.htm

[9] https://www.sanctuarycriminaljustice.com/blog/the-need-for-more-than-an-offence-of-coercive-control-to-combat-51203014544