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.