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Youth Justice Criminal Evidence Act

What The Youth Justice Criminal Evidence Act 1999

Initially, in the attempt to effectively discuss the statement in the light of section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCE) it is important to analyse what the Act says and what the statement presumes.

It will follow from this that the presumptions shall be explored with reference to alternative implications, concluding with the extent of accuracy which the assertion embraces.

Section 41 was introduced to reduce the use of sexual history evidence of the complainant in rape trials in an attempt to protect the complainant from intrusions into their privacy and reduce humiliation and harassment during questioning in court. Its introduction also resulted in the restricting of judicial discretion with stringent categories of admissibility, which all individually displayed difficulties and restrictions in themselves in relation to the definition of the categories in which the evidence would be admissible and the conflict born as a result of the restriction of evidence in relation to the right to a fair trial principle that will be discussed further on in the essay in light of the assertion made.

The statement firstly presumes that s41’s introduction “prevents the court from getting at the truth by excluding relevant evidence” where in fact its aim is to exclude evidence that is irrelevant and allows evidence to be admissible by way of the exception with the aim of appropriately aiding the directions given to the jury to come to a decision based on evidence that is relevant rather than be influenced by evidence that is irrelevant. Another assumption that is evident within the statement is that s41 completely contradicts and is incompatible with the principle right to a fair trial by stating that there are no “clear grounds of policy or law justifying the exclusion” of evidence which consequently “runs foul of fundamental conceptions of justice and what constitutes a fair trial”. On the contrary, as will be illustrated, the grounds of policy and legal justification for the basis of the section will be obvious primarily with reference to the case of R v A. Finally, what the statement fails to appreciate is the reasons for its introduction and why the section is seen to be restricting as a result of the definition of some words within the section itself and the importance of the position of the claimants in rape trials and the failure to continue with the trial and the initial reporting stages victims go through and the lack of reporting of crimes as a result of the humiliation and harassment complainants face in trials with reference to the findings of the Home Office online Report 20/06.

Following the recommendations in the Heilbron report, restrictions on the admission of sexual history evidence were first imported by Section 2 of the Sexual Offences (Amendments) ACT 1976. The Provision was criticised for investing too much discreation in trial judges in determining whether the defence should be permitted to introduce such evidence. The report of the special committee chaired by Heilbron J noted that the admission of sexual history evidence was humiliating for rape complainants and led to a significant number of complainants either not reporting or withdrawing complaints of rape.

The Youth Justice and Criminal Evidence Act 1999 was introduced in response to the concerns indicated by the 1998 report on the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System that argued that the extent of the use of sexual evidence would appear to go “far beyond” that was relevant, suggesting that sexual history evidence was used “in an attempt to discredit the victims character in the eyes of the jury.” It also followed concerns arising from section 2 which gave judges too much scope for discreation. However other problems were born with the introduction of section 41, notably the narrow language of the exclusion categories which would in affect deny the defendant the right to a fair trial prescribed within article 6 of his Convention Rights. In R v A the defendant wanted to adduce evidence that he had been engaged in prior consensual sexual relationship with the complainant over a three-week period prior to the rape. Section 41 provided exceptions to the general principle that a court would not allow evidence to be adduced of or cross-examination on, a complainant’s previous sexual history. The relevant provision as noted in section 41(3) were that the judge could give leave where the evidence or question related to a relevant issue in the case and a) that the issue was not an issue of consent or b) that the issue was an issue of consent but that the sexual behaviour was alleged to have taken place at or about the same time as the event, or c) that the issue was consent and the behaviour was so similar that it could not reasonably be explained as coincidence.

The court allowed examination under section 41(3) (b) on sexual intercourse with a third party nut any other prior relationship with the defendant would be inadmissible under section 41(3) (b). On appeal the decision was reversed from under section 41 (3) (b) to section 41 (3) (a) but that such material was inadmissible in relation to consent. Leave to appeal was granted by the House of Lords to the DPP the prosecuting authority. The defendant indicated that on the appeal he would invite the House to construe s.41 with its interpretative duty under section 3 of the Human Rights Act 1998 so as to achieve compatibility with Article 6 and alternatively he would seek a declaration of incompatibility. The court held by applying the interpretive obligation under s.3 due regard always should be paid to the importance of seeking to protect the complainant from indignity and humiliating questions. The test of admissibility was whether the evidence was nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under Art 6. If that test was satisfied, the evidence should be admitted. In regards to the European Convention on Human Rights Article 6, there was no absolute right of an accused to put whatever question he chose, what was important was proportionality being the key question, where it was necessary to strike a fair balance between the interest of the community and the protection of the individual.

Therefore ‘sexual experience’ would be given its natural meaning. The concept was of ‘sexual behaviour’ and ‘sexual experience’ was further explained as follows in the case of Mukadi as ‘in many cases it will be very easy to say what is or is not sexual behaviour, but there are obviously borderline cases in which the sexuality of what happens may be not so apparent as to lead on to the conclusion that the behaviour under examination is sexual. It would not be possible to try to define sexual behaviour further. Indeed, it probably would be foolish to do so. It is really a matter of impression and common sense’.

In R v T the issue was discussed whether the failure to allow cross-examination of sexual history allegations denied the defendant a fair trial. It was discussed that the mischief which section 41 is aimed at as in A (No 2) was to prevent the jury reasoning that a person who has had a colourful sexual history is more likely to tell lies or to consent to intercourse with anyone who asks.

For sexual history evidence to be permissible in the trial prior procedures has to be fulfilled. An application must be made in writing before the trial, however, research and reports show that advocates tend to smuggle in sexual history evidence under cover of evidence of previous statements. Ian Dennis discusses the key findings of the Home Office Online Report 20/06it notes that section 41 replaced reliance to introduce sexual history evidence on relevance and broad juridical discreation tightly drawn with categories of admissibility to protect the complainants from unwarranted intrusions into their privacy by harassing and humiliating questioning. The report involved a comprehensive methodology combining qualitative and quantitative data, including legal analysis of the case law on section 41, a national case-tracking exercise, detailed examination of Criminal Prosecution Service files, observations of a number of rape trials, interviews with complainants, interviews with judges, barristers, police officers and support services and analysis of Home Office statistics for reported rapes. The report found that sometimes sexual history evidence was used in trials without reference to section 41 and that the meaning of ‘sexual experience’ and ‘sexual behaviour’ should be defined more clearly. Finding reported that defence lawyers avoided the legislation and that written applications were completely ignored and instead brought up during the trial and that some were even unaware of the existence of the rules within the section.

Section 3 requires legislation to be interpreted consistently with rights wherever possible. As stated leave to can only be granted in one of three carefully prescribed instances. Crucially, the House of Lords held that on ordinary principles of interpretation, the section did not allow the accused to cross-examine the complainant as to her prior sexual relationship with the defendant, when the sexual activity in question was neither contemporaneous with nor strictly similar to the alleged offending. The Court took the view that if the section prohibited such cross-examination, as it appeared to do, then the statute would breach the Convention right to a fair trial. AS such the court felt compelled by s3 of the Human Rights Act to avoid the inconsistency through interpretation. Lord Steyn asserted that s.3 authorised a radical approach. “The techniques to be used all not only involve the reading down of express language in a statute but also the implication of provisions. A deceleration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on Convention rights is sated in terms, such impossibility will arise. There is however, no limitation of such a nature in the present case.” However, Richard Ekins indicated the error within the words of Lord Steyn. ‘After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under section3 to read section 41…as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible’, that by enacting s.41, the legislature has formed its own view as to the limits that should be placed on a criminal defendant’s ability to cross-examine complainants. Hence the balance has to be made and it has to be made by Parliament.

It is evident that there are a substantial number of concerns related to section 41. Nick Kibble stated in his article that the report argued that the extent of the use of sexual history evidence would appear to go ‘far beyond’ that was relevant, suggesting that sexual history evidence was used ‘in an attempt to discredit the victims character in the eyes of the jury.’

Professor Birch argues that the Home Office should admit that s. 41 is ‘theoretically flawed and inconsistent with the good evidence doctrine’. On the other hand, Professor Temkin insists that the Home Office has produced a fair and balanced attempt to control the use of sexual history evidence and should ‘stick to its guns’.

Based on the previous section 2 and the wide level of discreation it allowed judges and the introduction of section 41 in the attempt to reduce discreation and only allow admissible evidence within the exception, a judicial reasoning research was conducted on the structure and the operation of s.41 . The research found that judges agreed, based on four different scenarios, that initially the wording of the section, especially s,41 (4), in relation to the first scenario made it difficult to determine whether they would allow the evidence to be admitted and some felt obliged to exclude the evidence although they believed otherwise. In relation to the second scenario the judges asked to respond to the argument that the probative value of the sexual history evidence in such a case is outweighed by its prejudicial effect on the jury, therefore the evidence should be excluded. Generally, the report showed a great awareness in the application of the section by the judges, their response suggested that they are weighing the relevance of sexual history in circumstances of the case and determining whether the goal of achieving a fair trial for both defendant and complainant demand the admission or exclusion of evidence.

Nick Kibble in Part 2 of his article goes on further to analyse the section in relation to judicial discreation and in comparison to other legislative jurisdictions to adduce and understanding in the attempt to configure with the existing rule under section41 which approach would lead forward to better application balancing all rights of both the complainants and the defendant. He notes the Michigan non-discretionary regime but notes also the reclaim of the discretionary approach re-introduced by the courts in the case of Hackett. The Canadian jurisdiction on the “twin myths” model that retains discreation and that the previous s.276 of the Criminal Code Act was ruled by the Supreme Court to have violated the right of the defendant to a fair trial and was therefore unconstitutional. The New South Wales jurisdiction is the only full non-discretionary regime where s.409B of the Crimes Act 1990 (NSW) required with specific exceptions the prohibition even where within the exceptions, the probative value must outweighs the distress, humiliation or embarrassment for complainant as a result of the admission. Although the case, there was an ‘inquiry whether the section should be reformed by the New South Wales Law Reform Commission after a statement by the Chief Justice of the High Court of Australia in 1996 in regards to ‘means of ensuring a fair trial.’

Kibble argues and rightly so that the elimination of judicial discreation is undesirable and this in fact is what would lead to the defendant being stripped of his rights to a fair trial or otherwise. What is directly recommended is however is to leave section 1 alone as supported by R v A and to add further exceptions to allow a wider fairness and finally to adopt the Canadian approach as amended by the New South Wales Law Reform Commission.

Space does not permit us to further illustrate the problems that section 41 has produced in from the date of its introduction. However, in conclusion what we initially set out to determine is the extent to which the assertion made within the comment was true. It is true that there is a form of discreation the judges practice whether in the form of a judgement or otherwise, but should this not be available to the judiciary the assertion may be true. However, with the exceptions allowing the relevant substance of sexual history evidence to be introduced and admissible in rape trials it is highly unlikely that judges will ignore evidence that is relevant and exclude it from a trial thereby not allowing for the defendant a fair trial. With the basis of irrelevant evidence being excluded and relevant evidence admissible not only does the defendant obtain a fair trial but also a balance is reached with that of the complainants. The need to keep and protect this rule is most notably evident in relation to rape offences reported and those that actually end with a conviction. Where they do fail to be obtained not only is a result of the process the complainants fear to go through during a trial but also the basis for why such crimes are so little reported.

Bibliography

Articles/Reports

A. Ashworth, ‘The Human Rights Act 1998: Part 2: Article 6 and the Fairness of Trials’, Criminal Law Review, 1999, Apr, 261-272

A. Mills and J. Allen, ‘Rape and Sexual assault of women: the extent and nature of the problem’, Findings from the British Crime Survey, Home Office Research, Development and Statistics Directorate, March 2002

C. Forsyth, ‘Article 6 (1) the European Convention and the Curative Powers of Judicial Review’, Cambridge Law Journal, 2001, 449-452

C. Ovey, A.J. Ashworth, ‘Human Rights: Whether Restrictions on Questions that may be asked by Defence Deprive Defendant of Right under Art 6 (3) (D)’, Criminal Law Review, 2002, Jun, 497-498

D J. Birch, G. Underhill, ‘Evidence-Rape-Judge Giving Pre-Trial Ruling Refusing Defendant Leave to Adduce Evidence of Alleged Sexual History with Complainant’, Criminal Law Review, 2001, May, 389-394

D.J. Birch, N.P. Metcalfe, ‘Evidence: Rape-Statutory Provision of Previous Sexual Relationship between Complainant and Defendant’, Criminal Law Review, 2001, Nov, 908-911

D.J. Birch, T. Rees, ‘ Trial: Cross-Examination of Complainant in Sexual case-whether Cross-Examination About Sexual Behaviour or About Previous Statements’, Criminal Law Review, 2002, Jan, 73-74

D.J. Birch, ‘Rethinking Sexual History Evidence: Proposals for Fairer Trials’, Criminal Law Review, 2002, Jul, 531-553

D.J. Birch, ‘Untangling Sexual History Evidence: A Rejoiner to Professor Temkin’, Criminal Law Review, 2003, Jan, 370-383

D. Ormerod, ‘Sexual History Evidence’, Criminal Law Review, 2007, Feb, 181-184

D. Tausz, L.E. Ellison, ‘Sexual Assault: Whether Judge wrong to Refuse to Permit Cross-Examination of Complainant on Previous Complaints Made by her of Sexual Assault Recorded in Cris Report (Crime Reporting Information System)’, Criminal Law Review, 2005, Nov, 882-884

F. Bennion, ‘Judgement and Direction Revisited: Pedantry or Substance’, Public Law Journal, 2005, Win, 707-715

Home Office, Report of Advisory Group on the Law of Rape, (Cmnd 6352) (1975)

H. Galvin, ‘Shielding Rape Victims in the State Federal Courts: A Proposal for the Second Decade’, (1986) 70 Minn.L.R 763

I. Dennis, ‘Sexual History Evidence: Evaluating Section 41’, Criminal Law Review, 2006, Oct, 869-870

J.R. Spencer, “Rape Shield” and the Right to a Fair Trial’, Cambridge Law Journal, 2001, 452-455

Justice Wood, ‘Sexual Assault and the Admission of Evidence’, Practice and Prevention: Contemporary Issues in Adult Sexual Assault in NSW Conference, 12-14 February, 2003

J. Temkin, ‘Sexual History Evidence: The Ravishment of Section 2’, Criminal Law Review, 1993, 3

J. Temkin, ‘Sexual History Evidence: Beware the Backlash’, Criminal Law Review, 2003, Apr, 217-242

J. McEwan, “I thought she consented”: Defeat of the Rape Shield or the Defence that shall not run’, Criminal Law Review, 2006, Nov, 969-980

Judicial Reasoning Research, Criminal Bar Association and the University of Wales, Aberystwyth, 2003

L.E. Ellison, ‘Cross-Examination in Rape Trials’, Criminal Law Review, 1998, 605

L.E. Ellison, T. Rees, ‘Evidence: Indecent Assault-Youth Justice and Criminal Evidence Act 1999 s.41’, Criminal Law Review, 2005, Mar 227-229

L. Kelly, J. Lovett and L. Regan, A Gap or a Chasm? Attrition in Reported Rape Cases, 2005, London: Home Office

L. Kelly, J. Temkin and S. Griffiths, ‘Section 41: an evaluation of new legislation limiting sexual history evidence in rape trials’, Home Office Online Report 20/06

N. Kibble, ‘The Sexual History Provisions: Charting a Course between Inflexible Legislation Rules and Wholly Untrammelled Judicial Discreation’, Criminal Law Review, 2002, Apr, 274-292

N. Kibble, ‘Judicial Discreation and the Admissibility of Prior Sexual History Evidence Under Section 41 of the Youth Justice and Criminal Evidence Act 1999: Sometimes Sticking to your Guns means Shooting Yourself in the Foot: Part 2’, Criminal Law Review, 2005, 263-274

N. Kibble, ‘Judicial Perspective on the Operation of s. 14 and the Relevance and Admissibility of Prior Sexual History Evidence: Four Scenarios: Part 1’, Criminal Law Review, 2005, Mar, 190-205

R. Ekins, ‘A Critique of Radical Approaches to Regulate Consistent Statutory Interpretation’, European Human Rights Law Review, 2003, 6, 641-650

S. Leake, L.E. Ellison, ‘Evidence Whether Trial Judge Having Discretion to limit Extent of Admissibility of Evidence of Sexual Behaviour of Complainant Where Criteria for Admissibility Established’, Criminal Law Review, 2005, Jul, 564-566

Speaking up for Justice: Interdepartmental Working Group on the Treatment of Vulnerable or Intimidating Witnesses in the Criminal Justice System, Home Office Report, June 1998

Cases

R v A [2001] UKHL 25, [2001] 2 WLR 1546

R v Abdelrahman [2005] EWCA Crim 1367

R v Barton (1986) 85 Cr.App.R 5

R v E (Dennis Andrew) [2004] EWCA Crim 1313

R v F [2005] EWCA Crim 493

R v Gasaxo (Shino) [2005] EWCA Crim 1170

R v M [2002] 1 Cr.App.R 20

R v M [2004] EWCA Crim 916

R v Martin [2004] 2 Cr.App.R 22

R v Mukadi [2003] EWCA Crim 3765

R v Seaboyer 83 D.L.R 193

R v Soraya (Naveed) [2006] EWCA Crim 1884

R v T (Complainant’s Sexual History) [2001] EWCA Crim 1877

R v T [2002] 1 Cr.App.R 22

R v White [2004] EWCA Crim 946

R v Y [2001] EWCA Crim 4

Oyston v United Kingdom [2002] Crim.L.R 497

People v Hackett (1984) 421 Mich. 338

Legislation

Crime Act 1990 (NSW)

European Convention on Human Rights

Human Rights Act 1998

Sexual Offences (Amendment) Act 1976

Youth Justice and Criminal Evidence Act 1999

Texts

A. Keane, The Modern Law of Evidence, Oxford University Press, 2005

Choo, L.T. Andrew, Evidence, Oxford University Press, 2006

C. Tapper, Cross and Tapper on Evidence, 10th ed, Butterworths, 2005

C.H. Dennis, The Law of Evidence, 2nd ed, Sweet & Maxwell, 2002

P. Hurley & O’Connell, Blackstone’s Statute on Evidence, 8th ed, 2006/07

P. Murphy, Murphy on Evidence, 9th ed, Oxford University Press, 2005

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