(back to preceding text)

    51. It is plain a balance must be struck between the right of the defendant to a fair trial and the right of the complainant not to be subjected to unnecessary humiliation and distress when giving evidence. The right of the defendant to a fair trial has now been reinforced by the incorporation into our law of article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms by the Human Rights Act 1998. But the principles which are enshrined in that article have for long been part of our common law. The common law recognises that a defendant has the right to cross-examine the prosecutor's witnesses and to give and lead evidence. The guiding principle as to the extent of that right is that prima facie all evidence which is relevant to the question whether the defendant is guilty or innocent is admissible. As the fact that the act of sexual intercourse was without the consent of the complainant is one of the essential elements in the charge which the prosecutor must establish, the defendant must be given an opportunity to cross-examine the prosecutor's witnesses and to give and lead evidence on that issue. That is an essential element of his right to a fair trial.

    52. But the extent to which a defendant may go in the exercise of his right to be given that opportunity is a matter to which the common law has failed to provide a satisfactory answer. The problem is at its most acute in cases where the parties to the alleged rape are known to each other and have had some kind of a relationship in the past. In their joint written intervention the Rape Crisis Federation of England and Wales, the Campaign to End Rape, the Child and Woman Abuse Studies Unit and Justice for Women state that the evidence is that this is the most frequent type of rape, the least likely to be reported to the police and, when proceedings are brought, the least likely to result in a conviction. The statistics to which they refer bear out this statement.

    53. K Painter "Wife Rape, Marriage and Law: Survey Report, Key Findings and Recommendations" (Manchester University, 1991), reporting on a sample of 1007 women in 11 cities, stated that 1 in 4 of those interviewed said that they had been the victims of rape or attempted rape, that the most common perpetrators were current and ex partners and that 91 per cent of those interviewed had told no-one. Home Office Statistics quoted in Speaking Up for Justice, Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (Home Office, June 1998) indicated that, while in 1985 35 per cent of reported rapes occurred within an intimate relationship and 30 per cent were by strangers, by 1997 these percentages had altered to 43 per cent and 12 per cent respectively. On the other hand the conviction rate for rape had decreased markedly over the same period. In 1985 24 per cent of rapes reported to the police resulted in a conviction. By 1996 the number of rape complaints to the police had trebled but the conviction rate had fallen to 9 per cent. Unpublished research for the Home Office in 1997 concluded that there was a link between the increased number of complaints involving intimates and former intimates and the decrease in the conviction rate: "The Processing of Rape Cases by the Criminal Justice System" (1997) (Jessica Harris).

    54. To a substantial extent these studies may be thought to confirm what is already obvious. In an as yet unpublished paper "The Admissibility of Prior Sexual History with the Defendant in Sexual Offence Cases" (University of Wales Aberystwyth, February 2001) in which he conducted a review of the critical and reform literature on this subject in the United Kingdom between 1975 and 1999, Neil Kibble observed, at p 23, that the literature was concerned almost exclusively with the problems surrounding the admissibility of prior sexual history with third parties and that little systematic attention had been paid to the question of the relevance and admissibility of prior sexual history with the accused. But it is well known that women in general are deterred from making complaints that they have been raped by a person with whom they have or previously had a relationship. It is distressing enough for women to have to give evidence in these cases. They are unwilling to face the prospect of being further humiliated by questions directed to their previous or subsequent sexual history. The low conviction rate acts as a further deterrent. The humiliation for the woman is much increased if no conviction results after she has been subjected to that kind of questioning.

    55. These and studies undertaken in other countries, many of which were referred to by L'Heureux-Dubé and Gonthier JJ in their partial dissent in R v Seaboyer [1991] 2 SCR 577, indicate that the balance between the rights of the defendant and those of the complainant is in need of adjustment if women are to be given the protection under the law to which they are entitled against conduct which the law says is criminal conduct. As McLachlin J said, at p 609B-E, in the judgment which she delivered on behalf of the majority in that case, it is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues in the case. A law which prevents the trier of fact from getting at the truth by excluding relevant evidence runs counter to our fundamental conceptions of justice and what constitutes a fair trial. But there is a risk that juries may be diverted from the real issues in the trial by evidence about the complainant's sexual behaviour which is not directly relevant to the offence charged: R v Seaboyer [1991] 2 SCR 577, 634A-D; R v Darrach 191 DLR (4th) 539, 560-561, Kibble, p 41. A balance must be struck between the probative value of the evidence and its potential prejudice.

    56. Section 41 of the Youth Justice and Criminal Evidence Act 1999 has been designed to achieve that adjustment. It is clear from the background against which that section was enacted and from its own terms that this is the mischief which it was intended to address. It is also clear from what has been happening in other jurisdictions where similar provisions have been introduced that there was a choice to be made as to how far the balance should be adjusted in favour of the public interest while preserving the right to a fair trial. A wide variety of measures to which I shall refer later, commonly known as "rape-shield" provisions, have been enacted to restrict the right of a defendant who is on trial for a sexual offence to cross-examine and lead evidence of the complainant's sexual conduct on other occasions.

    57. Section 2 of the Sexual Offences (Amendment) Act 1976 left this matter to the discretion of the trial judge. The original Bill had contained complicated provisions which were designed to restrict the admissibility of such evidence, but these were removed and replaced by a general test of unfairness to the defendant. Section 2(2) of the Act provided that the judge should give leave if, and only if, he was satisfied that it would be unfair to the defendant to refuse to allow the evidence to be adduced or the question to be asked. But the statistics showed that the object of that measure, which was to protect complainants against unnecessary evidence and questions about their previous sexual experience, was not being achieved. They raised doubts as to whether it was satisfactory, in this very difficult and sensitive area, to leave the decision whether leave should be given entirely to the trial judge. The question which has been raised in this case is whether the new legislation, which greatly restricts the discretion given to the trial judge, is compatible with the defendant's Convention right to a fair trial.

    58. I would take, as my starting point for examining section 41, the proposition that there are areas of law which lie within the discretionary area of judgment which the court ought to accord to the legislature. As I said in R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 380-381E, it is appropriate in some circumstances for the judiciary to defer, on democratic grounds, to the considered opinion of the elected body as to where the balance is to be struck between the rights of the individual and the needs of society: see also Brown v Stott [2001] 2 WLR 817 per Lord Bingham of Cornhill, at p 835A-B, and Lord Steyn at p 842F-G. I would hold that prima facie the circumstances in which section 41 was enacted bring this case into that category. As I shall explain in more detail later (see paragraph 90, post), the right to lead evidence and the right to put questions with which that section deals are not among the rights which are set out in unqualified terms in article 6 of the Convention. They are open to modification or restriction so long as this is not incompatible with the right to a fair trial. The essential question for your Lordships, as I see it, is whether Parliament acted within its discretionary area of judgment when it was choosing the point of balance that is indicated by the ordinary meaning of the words used in section 41. If it did not, questions will arise as to whether the incompatibility that results can be avoided by making use of the rule of interpretation in section 3 of the Human Rights Act 1998, failing which whether a declaration of incompatibility should be made. But I think that the question which I have described as the essential question must be addressed first. As Lord Woolf CJ said in Poplar Housing and Regeneration Community Association Ltd v Donaghue [2001] EWCA Civ 595, para 75, unless the legislation would otherwise be in breach of the Convention section 3 of the 1998 Act can be ignored. So the courts should always ascertain first whether, absent section 3, there would be any breach of the Convention.

    59. I shall need to look at section 41 in more detail. But I must first set out briefly the facts which have given rise in this case to the question whether a sexual relationship between a defendant and a complainant may be relevant to the issue of consent so as to render its exclusion by that section a contravention of the defendant's right to a fair trial. The facts are important, because it is to the facts of the particular case as alleged by the defendant that any issues about any possible incompatibility with his Convention right to a fair trial must be directed.

    60. The incident in which the respondent is alleged to have raped the complainant took place in the early hours of 14 June 2000 beside the river Thames as they were walking along the towpath. As they walked along the path the respondent fell down. The complainant states that when she tried to help him to his feet he pulled her to the ground and had sexual intercourse with her without her consent. The respondent's case is that on the occasion in question the complainant initiated consensual intercourse. He states that this was part of a consensual sexual relationship which covered a period of about three weeks prior to 14 June 2000 during which he had sexual relations with her, including sexual intercourse, in his flat on various occasions. The last of these was about one week before the alleged rape. In short, the respondent's case is that he did not rape the complainant because she consented to the act of intercourse. He seeks leave to cross-examine her and lead evidence about their previous relationship to support his defence that this was an act of consensual intercourse. No doubt any cross-examination which is directed to that relationship will tend to undermine her credibility on this vital issue.

    61. The history is complicated by the fact that the respondent was sharing his flat with another man with whom the complainant is said to have formed an intimate relationship. It is said that she used to visit the other man at the flat, and that at about 9 pm on 13 June 2000 she had sexual intercourse with him in the flat when the respondent was not there. On the occasion of the alleged rape the respondent and the complainant were walking from the flat to a hospital where the other man had been taken after collapsing on his return from a picnic with the complainant that evening close to the river bank.

    62. The case came before the trial judge for a preliminary hearing under sections 29 to 31 of the Criminal Procedure and Investigations Act 1996 on 8 December 2000. He was asked to rule on the extent to which cross-examination of the complainant would be permitted in the light of section 41 of the 1999 Act. He held that the complainant could be cross-examined about the act of sexual intercourse which took place between her and the other man a few hours before the occasion of the alleged rape and about any other sexual activity she may have had with other men at or about the same time under section 41(3)(b). But he said that cross-examination about her previous relationship with the respondent would not be permitted to any extent under either section 41(3)(b) or section 41(3)(c).

    63. The respondent appealed against this ruling to the Court of Appeal (Criminal Division) under section 35(1) of the Criminal Procedure and Investigations Act 1996 with the leave of the trial judge. At the hearing of the appeal the respondent's counsel, Mr Rook QC, who did not appear in the court below, raised for the first time the question whether cross-examination and evidence directed to the complainant's prior sexual activity with the respondent would be admissible under section 41 in relation to a further defence that he honestly believed that she was consenting to intercourse: see Director of Public Prosecutions v Morgan [1976] AC 182. The Crown conceded that cross-examination and evidence directed to this issue would be admissible under section 41(3)(a) of the Act: para 34 of the Court of Appeal's judgment. For his part, Mr Rook did not seek to suggest that there was such a degree of similarity in the present case as would permit questions to be asked under section 41(3)(c): para 19.

    64. As to the merits of the appeal, the Court of Appeal [2001] EWCA Crim 4 held that the judge was right to conclude that cross-examination and evidence about the complainant's recent consensual sexual activity with the respondent would not be admissible under section 41(3)(b): para 34. But the court held that the judge was wrong in saying that questions and evidence about the complainant's sexual behaviour with the respondent's friend or with other third parties on the night of the alleged rape would be admissible under section 41(3)(b) because the court was of the opinion that this material was not relevant: paragraph 35. The appeal was allowed however on the ground that the judge was wrong to hold that evidence and questions about the complainant's sexual behaviour with the respondent was inadmissible. This was because, as the Crown conceded, that evidence was permissible under section 41(3)(a) in relation to the defence of belief as to consent: para 35.

    65. However, Rose LJ said that the court respectfully differed from the view that previous recent consensual intercourse between the complainant and the defendant was irrelevant to whether she consented on the occasion said to give rise to rape, and that it might be that a fair trial would not be possible if there could not be adduced, in support of the defence of consent, evidence as to the complainant's recent consensual activity with the defendant: paras 30, 33. It is those observations that have led to this appeal by the Crown, for which the Court of Appeal granted leave. On 7 March 2001 the House gave leave to the Secretary of State for the Home Department to be joined as a party to the appeal for the reasons given in the 31st Report from the Appeal Committee of that date: [2001] 1 WLR 789.

    66. Your Lordships are not being asked in this case to reconsider the decision in Director of Public Prosecutions v Morgan [1976] AC 182. The proper limits of that defence currently under examination by the government following an independent review, the results of which are set out in a consultation paper entitled "Setting the Boundaries, Reforming the Law on Sex Offences" (Home Office, July 2000), para 2.13. For the time being it may be noted, as it was pointed out in Jamieson v H M Advocate 1994 SLT 537, 541J-K by the High Court of Justiciary, that as the law stands difficult questions of fact may arise as to whether, if he can give no reasonable grounds for his belief, the accused genuinely believed at the time that the woman was consenting or was reckless or indifferent as to the matter of consent. For the purposes of this case it must be assumed that cross-examination and evidence which is directed to that issue will be permitted at the trial, in accordance with the concession by the Crown, under reference to section 41(3)(a) of the 1999 Act. The issue as to the respondent's honest belief that the complainant was consenting to intercourse is not an issue of consent.

    67. All that needs to be said about this part of the respondent's case is that the extent to which the complainant may be cross-examined about her previous relationship with the respondent, and the extent to which the respondent may give evidence about it, for the purposes of the defence of honest belief will be subject at all times to control by the court under section 41(2)(b). The court has an overriding duty under that paragraph to ensure that any evidence or question for which leave is given is permitted only to the extent that to refuse leave would render a conclusion on any relevant issue in the case unsafe.

    68. But the facts which the respondent wishes to elicit by cross-examination and to adduce in evidence in support of the defence of consent bring into sharp focus the following questions: (a) whether the questions and evidence will be admissible under section 41 when that section is construed according to ordinary common law principles and (b) if not, whether to exclude them would be compatible with his Convention right to a fair trial. If both of these questions are answered in the negative, two further questions will arise. The first is whether the critical parts of section 41 can be given a different meaning by using the techniques of statutory interpretation indicated by section 3 of the Human Rights Act 1998, which requires that the legislation must be read and given effect to, so far as it is possible to do so, in a way which is compatible with the respondent's Convention right. If that cannot be done, consideration will have to be given to the question whether to make a declaration of incompatibility under section 4 of the 1998 Act.

    69. It may be noted in passing that a statement of compatibility was attached to the Bill before second reading that its provisions were compatible with the Human Rights Act 1998. Statements to that effect are now required by section 19 of the Act, which was brought into force on 24 November 1998: (SI 1998/2882). But Mr Pannick QC for the Secretary of State did not seek to rely on this statement in the course of his argument. I consider that he was right not to do so. These statements may serve a useful purpose in Parliament. They may also be seen as part of the parliamentary history, indicating that it was not Parliament's intention to cut across a Convention right: Lord Irvine of Lairg LC "The Development of Human Rights in Britain under an Unincorporated Convention on Human Rights" (1998) PL 221, 228. No doubt they are based on the best advice that is available. But they are no more than expressions of opinion by the minister. They are not binding on the court, nor do they have any persuasive authority.

    70. I propose in this section to examine in detail only those provisions of section 41 that are directly in issue in this case. It is not possible in this case to solve all the problems that may arise. But it may be helpful for me to state what I understand to be its basic structure.

    71. Section 41 of the 1999 Act contains the following essential elements:

    it applies to any trial at which a person is charged with a sexual offence (see subsection (1) which extends, among other things, to a wide range of sexual offences involving children as well as those involving women who complain that they have been raped);

    it contains a general prohibition against the adducing by the accused of evidence or his asking of questions in cross-examination about any sexual behaviour of the complainant except with the leave of the court (see subsection (1), which is to be read with the definition of "sexual behaviour" in section 42(1)(c));

    it provides a requirement that leave be given only on an application made by or on behalf of the accused (see subsection (2), as to which section 43 lays down the procedure);

    it places a duty on the court to grant leave only if it is satisfied that the evidence or question falls within one or other of the two qualifying subsections (see subsection (2)(a), and subsections (3) and (5)); and

    it places an overriding duty on the court to grant leave only if to refuse to do so might have the result of rendering a conclusion on a relevant issue unsafe (see subsection (2)(b), which is to be read with the definition of "relevant issue" in section 42(1)(a)).

    72. It is clear that this structure has been designed in such a way as to balance the competing interests of the complainant who seeks protection from the court and the accused's right to a fair trial. The section leans towards the protection of the complainant. The protection extends to questions and evidence about sexual behaviour after, as well as before, the event giving rise to the charge. It ends the assumption, widely held hitherto, that the complainant's prior sexual behaviour with the defendant is always relevant and admissible. The admissibility of the complainant's sexual behaviour with the defendant is to be determined under the same procedural provisions as those which apply to the admissibility of such behaviour with third parties. But the court is enabled, in the defendant's interest, to give leave in any case which falls within one or other of the two qualifying subsections where to do otherwise might render a conclusion on any issue falling to be proved in the trial by the prosecution or the defence unsafe.

    73. Of the two qualifying subsections, the only one that is in play in this case is subsection (3). Subsection (5) applies where the purpose of the evidence or question is to rebut or explain evidence adduced by the prosecution. It was not suggested that the respondent's application was made in reliance upon this subsection. I would prefer not to speculate on the circumstances in which the subsection might be invoked. But it is reasonable to think that it was included with a view to the accused's right to a fair trial. The section places no restrictions on the evidence which may be led by the prosecutor. It would plainly be unfair if the prosecutor were, for example, to lead similar fact evidence to support the Crown's case of the kind described in Director of Public Prosecutions v P [1991] 2 AC 447 and the accused were not to be given an opportunity in cross-examination or by adducing evidence to rebut that evidence. Subsection (5) avoids this unfairness.

    74. Subsection (3), which is the critical subsection in this case, comprises three qualifying conditions which are stated in the alternative. It requires careful analysis. First there are the opening words of the subsection. They provide that the subsection applies only if the evidence or question relates to a relevant issue in the case - that is, any issue falling to be proved by the prosecution or the defence at the trial: see section 42(1)(a). The wording of this part of the subsection reflects the general tenor of section 41, which is to protect the complainant against evidence or questions about his or her sexual behaviour other than as part of the event which is the subject matter of the charge. Put the other way round, the evidence or question will cross the threshold of subsection (3) if it relates to an issue which falls to be proved by the prosecutor or by the defence. In this respect at least the subsection has been designed to avoid the unfairness which would result if the accused were to be denied the opportunity to lead evidence or put questions directed to issues that were relevant at the trial. Thus far it does not infringe the defendant's right to make a full answer and defence to the charge.

    75. But the threshold which is set by the opening words of subsection (3) is further qualified by subsection (4), which provides that for the purposes of subsection (3) - but not, it should be noted, for the purposes of the rebuttal provisions in subsection (5) - no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose or the main purpose for which it would be adduced or asked would be to impugn the credibility of the complainant as a witness. At first sight this is a serious intrusion on the accused's right to a fair trial. In cases where the accused who is on trial for rape admits that he had sexual intercourse with the complainant on the occasion in question but says that it was with her consent the credibility of the two parties is likely to be the critical issue.

    76. But the definition of "sexual behaviour" in section 42(1)(c) excludes for this purpose anything alleged to have taken place as part of the event which is the subject matter of the charge. It appears that subsection (4) is designed to address one of the two evils which lie at the heart of the mischief which forms the background to the enactment. These are the leading of evidence of sexual behaviour other than that which took place as part of the event which is the subject matter of the charge for the sole or main purpose of showing that, by reason of such sexual behaviour, the complainant (a) was more likely to have consented to the sexual conduct which is at issue in the trial or (b) was an unreliable or less than credible witness. These were described by McLachlin J in R v Seaboyer [1991] 2 SCR 577, 630G-H as the twin myths that may still inform the thinking of many but have no place in a rational and just system of law. As she put it, evidence of such behaviour cannot in itself be regarded as logically probative of either the complainant's credibility or consent. The evil which this subsection addresses in uncompromising terms is the drawing of impermissible inferences as to the complainant's credibility. I shall deal in the next section of this judgment (see paragraph 90 et seq, post) with the question whether by choosing to deal with this issue in this way the section has infringed the accused's Convention right to a fair trial.

    77. Section 41 does not distinguish between evidence or questions about the complainant's sexual behaviour with the accused and the complainant's behaviour with persons other than the accused. The extent to which these two situations ought to be approached differently is left to the determination of the trial judge. There are strong reasons for imposing a narrower prohibition on the complainant's sexual behaviour with third parties. Evidence or questions about sexual behaviour with third parties is likely to be much harder to justify on grounds of relevancy than evidence about sexual behaviour with the defendant. Nevertheless I think that the draftsman was right to avoid laying down an absolute rule on this point. To have done so would have been to risk incompatibility with the accused's right to a fair trial. It is worth noting that the absolute prohibition in the original version of section 276(1) of the Canadian Criminal Code (RSC 1985, c C-46) which was held in R v Seaboyer to be incompatible with the defendant's rights under the Charter of Rights and Freedoms was directed solely to evidence about the sexual activity of the complainant with persons other than the accused. The section, in its original version, placed no restriction on the admissibility of evidence about sexual activity with the accused himself. Much of the discussion in that case is about the relevance or otherwise of the complainant's sexual activity with third parties. But McLachlin J, at p 633F, questioned whether evidence about other sexual activity with the accused should be automatically admissible, and in its revised form section 276(1) of the Code treats both kinds of sexual activity in the same way. In this respect, as counsel for the Secretary of State pointed out (in my view correctly), section 41 follows the Canadian example.