England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		15th January 2001

1. THE VICE PRESIDENT: This is an interlocutory appeal by the defendant, under section 35 of the Criminal Procedure and Investigations Act 1996. He is to be tried for rape, said to have been committed on 14th June 2000. His defence is consent. He challenges a ruling by the trial judge at a preparatory hearing at the court on 8th December 2000, in relation to the cross examination of the complainant and the leading of evidence as to the complainant's previous sexual activity with the appellant, including consensual sexual intercourse on several occasions, said to have taken place during the 3 week period prior to the alleged rape, the last such intercourse occurring about a week before.
2. The judge ruled, by reference to section 41 of the Youth Justice and Criminal Evidence Act 1999, which came into force on 4th December 2000, that the complainant could be asked about having had sexual intercourse with a friend of the appellant on the evening before the alleged rape, although leave to ask such questions had not been sought on behalf of the defendant. But he further ruled that the complainant could not be asked whether, nor could the appellant give evidence that, she had been having sexual intercourse with the appellant during the period to which we have referred.
3. If that ruling correctly interprets the legislation, it is, to put it no higher, somewhat surprising. The judge accepted that the exclusionary part of his ruling prima facie offended the defendant's right to a fair trial under Article 6 of the European Convention of Human Rights and he gave leave to appeal "with enthusiasm."
4. The judge did not consider, because he was not invited to by counsel appearing before him, whether evidence in relation to the complainant's prior sexual activity with the defendant and questions of her about it were admissible under the statutory provisions in relation to the further defence of belief in consent, in accordance with Morgan v DPP [1976] AC 182.
5. Before dealing with the rival contentions advanced before this Court, it is necessary to set out the relevant statutory provisions. Section 41 of the 1999 Act provides:

"(1) If at a trial a person is charged with a sexual offence, then, except with leave of the court

(a) no evidence may be adduced, and

(b) no question may be asked in cross examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.

(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied

(a) that subsection (3) or (5) applies, and

(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.

(3) This subsection applies if the evidence or questions relates to a relevant issue in the case and either

(a) that issue is not an issue of consent; or

(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or

(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar

(i) 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

(ii) 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.

(4) For the purposes of subsection (3) 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 main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

(5) This subsection applies if the evidence or question

(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and

(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.

(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate)."

6. It is to be noted that, in the course of the appeal before this Court, Mr Perry, on behalf of the Crown, conceded that questioning and evidence in relation to the complainant's prior consensual sexual activity with the defendant is admissible under section 41(3)(a) in relation to the defendant's belief as to the complainant's consent. That of itself raises a variety of problems which it is not necessary, for present purposes, to address, save to say that if a complainant's previous sexual activity with the defendant is admissible, in relation to belief as to consent, but inadmissible as to consent, the summing up, as Mr Perry accepts, must direct the jury to have regard to that evidence solely when considering the state of mind of the defendant, but to disregard that evidence when considering the state of mind of the complainant.
7. If, and it appears to be so, that is the consequence of this legislation, it might be thought that a summing up in such terms would owe more to Lewis Carroll than to sensibly jurisprudence.
8. Be that as it may, Article 6 of the European Convention provides that, in the determination of a criminal charge, everyone is entitled to a fair hearing, that is a fair trial. The right to a fair trial is to be given a broad and purposive interpretation (see for example Moreira de Azevedo v Portugal 13 EHRR 721, at paragraph 66).
9. The Human Rights Act 1998 by, section 1, conferred this Convention right to a fair trial on a defendant. By section 2, it obliged this Court, in determining questions arising in connection with Convention rights, to take into account, among other matters, judgments of the European Court of Human Rights. Furthermore, by section 3, primary legislation whenever enacted "must be read and given effect in a way which is compatible with the Convention Rights."
10. In relation to a provision of primary legislation, section 4(2) says:

"If the court is satisfied that the provision is incompatible with a Convention right it may make a declaration of that incompatibility."

11. The court, for this purpose, includes the High Court and the Court of Appeal (see section 4(5)(e)).
12. But, by section 4(6) such a declaration:

"(a) does not effect the validity continuing operation or enforcement of the provision, in respect of which it is given; and

(b) is not binding on the parties to the proceedings in which it is made."

13. So, even if a declaration of incompatibility were to be made, it would not, of itself avail this or any other defendant unless, of course, the Home Secretary were to exercise his remedial powers under section 10 to amend the legislation so speedily that this defendant would benefit from such amendment.
14. In any event, by virtue of section 5 of the Act, a declaration of incompatibility cannot be made without the Court first giving the Secretary of State notice of that possibility and joining him as a party in the proceedings.
15. In the light of those considerations, it will not, in due course, form any part of this judgment as to whether or not, as a matter of final determination, the provisions of section 41(3)(b) of the 1999 Act, if they preclude evidence as to previous consensual sexual activity between the complainant and the defendant, is compatible with the fair trial provisions of Article 6.
16. That said, we turn to the submissions made by Mr Rook QC, who did not appear in the court below, on behalf of the appellant. Clearly, he submits, section 41 provides that evidence which is not relevant shall not be admitted. Section 41(4) excludes any evidence the main purpose of which is to impugn the credibility of the complainant.
17. Section 41(2) enables the giving of leave for cross examination and the adducing of evidence only if the evidence or question is within subsection (3) or subsection (5). For present purposes, it is subsection (3) within which the evidence or question must fall, if it is to be admissible.
18. So far as subsection (3)(a) is concerned, Mr Rook submits and, as we have said, Mr Perry on behalf of the Crown concedes, that belief of the appellant that the complainant was consenting is, within subsection (3)(a), not an issue of consent, and therefore it is a matter to which a question or evidence of the kind which we have identified can be permitted.
19. As to subsection (3)(c), which requires similarity between the circumstances said to give rise to the offence of rape and the other behaviour as to which evidence might be sought to be led, it is essential that the matters about which questions or evidence relate must be "part of the event which is the subject matter of the charge against the accused" or that they took place "at or about the same time as that event." Mr Rook does not seek to suggest that there is such a degree of similarity in the present case as would enable questions to be asked under 3(c).
20. As to 3(b), he invites the Court to adopt a liberal interpretation of the words "at or about the same time as the event which is the subject matter of the charge" to read those words down in such a way as to be compatible with the fair trial provisions of Article 6, and to conclude that the judge was wrong in excluding the questions and evidence about the complainant's relationship with the defendant. He submits that sexual intercourse between a complainant and a defendant, at any rate when it is not remote in time from the events giving rise to the charge, is and should be regarded as being relevant to whether or not the complainant consented on the occasion in question. He submits that a recent and apparently continuing consensual relationship is relevant to consent: first, because it would be wrong for the jury to evaluate the evidence of what will otherwise appear to them to be a first sexual encounter, without knowing the background and understanding the history of the sexual relationship; secondly, because such evidence is relevant to consent of the complainant on the occasion charged if it demonstrates other recent consent by the complainant in relation to the defendant.
21. Mr Rook took us to an article by Professor Harriet Galvin entitled "Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade" published in the Minnesota Law Review, Volume 70, starting at page 763. That is an article which, as will emerge, has had considerable impact upon the courts in Canada. In the course of that article, Professor Galvin, at page 807 said this:

"Even the most ardent reformers acknowledged the high probative value of past sexual conduct in at least two instances. The first is when the defendant claims consent and establishes prior consensual sexual relations between himself and the complainant... although the evidence is offered to prove consent, its probative value rests on the nature of the complainant's specific mindset towards the accused rather than on her general unchaste character."

22. At page 815, Professor Galvin refers to the legislation in a number of states of the United States, listed in table 2 to that article and including Illinois, Massachusetts and Pennsylvania. Professor Galvin makes this comment:

"All twenty five statutes adopting the Michigan approach allow the accused to introduce evidence of prior sexual conduct between himself and the complainant. The high probative value and minimal prejudicial effect of this evidence have been discussed. Rather than relying on the invidious inference that consent with one implies consent with others, this evidence is probative of the complainant's state of mind towards the particular defendant, permitting an inference that the state of mind continued to the occasion in question."

23. Mr Rook also took us to an article by Professor Diane Birch entitled "A Better Deal for Vulnerable Witnesses?" 2000 Crim LR 223, at 248:

"...because it appears to be considered that the judicial notion of relevance is so outdated and wrong headed that it cannot possibly be defended, the prevailing culture is to be challenged by legislating in favour of the 'correct' view. Under section 41, the complainant's sexual behaviour (including behaviour with the accused) has relevance to consent only where it took place at or about the same time as the event of the subject matter of the charge or to any other sexual behaviour alleged to have taken place at or about that time. All that can be revealed, it would seem, is evidence such as that the complainant was seen in a passionate embrace with the accused just before (or just after) the alleged offence; bizarre and unusual conduct like the much discussed propensity to re enact the balcony scene from Romeo and Juliet, and (perhaps) evidence that the complainant was picking up clients as a prostitute (if it is D's defence that he was so picked up). Along with all the complainant's other sexual doings, the remainder of the history of any sexual relationship the complainant has had with the accused will, it seems, have to be concealed from the jury or magistrates. It is not clear how this is to be done in a case where, for example the parties are living together: is the jury simply to be told what happened in the bedroom without any idea of whether D was a trespasser or an invitee? Presumably there will have to be some concept of background evidence that it is necessary for the jury to know in order to make sense of the evidence in the case.

Section 41 is well intentioned, but the constraints laid on relevance go too far. It is also far from apparent why the history of the complainant's relationship with the accused was factored into the exclusionary rule at all: the present rule, excluding evidence about behaviour with third parties, would seem to be as far as it is necessary to go. Because it is so prohibitive, it evokes painful memories of the courts' early efforts in the field of similar fact evidence to constrain relevance within predetermined categories efforts which are now recognised to have been an attempt to avoid a more precise assessment of probative value in the circumstances of each individual case."

24. Mr Rook, as we have said, invited us to construe the words "at or about the same time as" widely. We find it quite impossible to construe those words as applying to events months, weeks, or even days prior to the events said to give rise to the rape.
25. Mr Rook accepts the accuracy of Mr Perry's helpful historical analysis of the common law and statutory provisions in this country. These, up to and including the report of the Heibron Committee, and section 2 of the Sexual Offences Act 1976, established the principle that prior sexual activity by the complainant was not properly to be regarded as either relevant to the credibility of the complainant or probative in relation to consent by the defendant. But, Mr Rook submits, until the Canadian authorities to which we shall come and section 41 which is presently being addressed and which, Mr Perry tells us, owes it origin to the Canadian authorities, there had not, in this country, been any common law or statutory suggestion that prior consensual sexual activity between a complainant and a defendant is irrelevant to the question of consent on the occasion said to give rise to the offence.
26. Mr Perry, on behalf of the Crown, submitted that section 41 was very carefully designed and drafted to prevent questioning or evidence in relation to a complainant's prior sexual activity to support two impermissible inferences, that is to say, that her credit was open to question, or that she had consented on the instant occasion. But, he submitted, such questioning or evidence may be admitted in accordance with the other provisions of section 41, if it is truly relevant. But consent on a previous occasion, even in relation to the defendant, is not, he submits, probative or relevant to consent or its absence on the occasion giving rise to the charge, because consent is exercised independently in relation to sexual behaviour on each occasion that it occurs. He tells us, and we accept, that, in the course of the passage of this legislation through the House of Lords, attention was drawn to the Canadian authorities, to which in a moment we shall come, in order to address the question of whether or not the exclusionary provisions of section 41 are compatible with the European Convention on Human Rights.
27. Mr Perry took us in some detail to R v Seaboyer [1991] 2 SCR 577, in which the majority of the Supreme Court of Canada struck down the then version of section 276 in the Canadian Criminal Code. He accepted that although, at the conclusion of the judgment of the majority at page 70, there is, a reference to sexual conduct by the complainant with the accused as being in the same category as sexual conduct by the complainant with others, there is nowhere else in the judgment any discussion or analysis of that proposition.
28. He also took us in his skeleton argument and would have taken us again, had it been necessary to do so in his oral submissions, to R v Darrach [2000] SCC 46, where the revised version of section 276 of the Canadian Criminal Code, which was derived from the Supreme Court's decision in Seaboyer, was upheld as not contravening a defendant's right to a fair trial.
29. It is apparent, that the Supreme Court of Canada's decision in Darrach is underpinned by reliance on what are said to be the twin myths that the previous sexual activity of the complainant is relevant to the complainant's consent and credibility.
30. For our part, we have no difficulty in accepting that a complainant's previous sexual activity is generally irrelevant to her credibility, and her previous sexual activity with persons other than the defendant is generally irrelevant to whether she consented to sexual intercourse with the defendant on the occasion said to give rise to rape. But, on the basis of the arguments presently before us, (and for the reasons which we gave earlier, we express no final and concluded view on this), we respectfully differ from the view that previous recent consensual sexual intercourse between the complainant and the defendant is irrelevant to whether she consented on the occasion said to give rise to rape.
31. In our judgment, provisional though we emphasise it is, it is not mythical but common sense that a person, whether male or female, who has previously had consensual intercourse with another, particularly in recent weeks or months may, on the occasion in dispute have been more likely to consent to intercourse with that other than if that other were a stranger or one with whom no previous sexual familiarity had occurred. We do not accept, on the basis of the matter as we presently understand it, that such an approach stems from "sexist beliefs about women which distort the trial process". On the contrary, it seems to us to reflect human nature, regardless of sex. The trial process would be unfairly distorted if a jury were precluded from knowing, if it be the case, that the complainant and defendant had recently engaged in consensual sexual activity with each other. The validity of this approach may be confirmed when it is borne in mind that the provisions of section 41 are not limited to rape cases, but apply whenever a person is charged with a sexual offence. That is, these provisions apply, for example, if a woman is charged with indecently assaulting a man. We respectfully venture the question: can it sensibly be said that it is irrelevant to whether the man consented that he had previously and recently engaged in consensual sexual activity with the female defendant?
32. The Canadian legislation, which it is unnecessary at this hour to rehearse, is very different in structure from section 41 which we are considering. For example, whereas section 276(1) precludes the use of sexual activity for two specific purposes, section 41(1) provides for a blanket exclusion. And whereas section 276(2) and (3) preserve a considerable judicial discretion, section 41(2) to (6) limit judicial discretion very severely indeed. Accordingly we do not derive assistance from Darrach in relation to the question of relevance.
33. As will be apparent from what we have already said, it may be that a fair trial will not be possible if there cannot be adduced, in support of the defence of consent, evidence as to the complainant's previous recent consensual sexual activity with the defendant.
34. However, the judge was, in our judgment, correct to conclude that such cross examination and evidence are impermissible under section 41(3)(b). He was not, however, as we have already indicated, correct in excluding such questioning and evidence entirely. For, in our judgment, Mr Perry's concession is rightly made that such questions and evidence are permissible under section 41(3)(a) in relation to the defence of belief as to consent.
35. Furthermore, as Mr Rook concedes, the judge was also wrong in saying that questions and evidence were permissible in relation to the complainant's alleged sexual intercourse with the appellant's friend on the night before the alleged rape. That material, as it seems to us, and as Mr Rook accepts, was not relevant and admissible under section 41. We also add that, in so far as the judge ruled inadmissible the statement made by the defendant and proffered to the police, he was wrong. Subject to editing in relation to intercourse with the appellant's friend the previous night, that statement is admissible. But it is only admissible in relation to belief as to consent and not as to consent.
36. It follows that this appeal is allowed. It also follows, as Mr Perry submits, that the judge will have to direct the jury in this trial, in due course, if evidence is adduced before the jury, as to the complainant's consensual sexual activity with the appellant during the three weeks before the alleged rape, that that evidence is solely relevant to the question of the appellant's belief as to consent, and is not relevant as to whether the complainant in fact consented.
37. Whether if, following a trial with such a direction, the appellant were to be convicted, it would be possible to argue, by way of appeal, that his trial had not been fair, in the light of Article 6, remains for consideration on some future occasion. Clearly, if those events occur, that will be the time, if the point has not previously been resolved following some other trial, for the Home Secretary to be joined as a party with a view to the possibility of a declaration of incompatibility between the provisions of section 41(3)(b), (in so far as they preclude reference, in relation to consent, to the complainant's prior consensual sexual activity with the defendant) and Article 6.
38. For the reasons given this appeal is allowed.