Section 41 Youth Justice and Criminal Evidence Act 1999:..., Arch.

News 2004, 8, 6-9

For educational use only

Section 41 Youth Justice and Criminal Evidence Act 1999:
fundamentally flawed or fair and balanced?
Neil Kibble

Journal Article

Archbold News

Arch. News 2004, 8, 6-9

Subject
Criminal evidence

Keywords
Admissibility; Criminal evidence; Sexual behaviour; Sexual offences; Statutory interpretation

Cases cited
R. v Seaboyer (1991) 183 D.L.R. (4th) 193 (Sup Ct (Can))
R. v A (Complainant's Sexual History) [2001] UKHL 25; [2002] 1 A.C. 45; [2001] 5 WLUK 474 (HL)

Legislation cited
Youth Justice and Criminal Evidence Act 1999 (c.23) s.41
Crimes Act 1900 (New South Wales) s.409B

*Arch. News 6 It is no secret that there are fundamental divisions of opinion as to the merits of s. 41. In a forceful exchange
of views in the Criminal Law Review, Professor Birch argued that the Home Office should admit that s. 41 is "theoretically
flawed and inconsistent with good evidence doctrine." 1 Professor Temkin, on the other hand, argued that the Home Office had
produced a fair and balanced attempt to control the use of sexual history evidence and should "stick to its guns." 2

Such divergence of opinion is not confined to academics. Judges, for their part, value the decision of the House of Lords
in R v A (No.2) [2002] 1 AC 45 because it restores their discretion as to where the line should be drawn in relation to the
relevance of sexual behaviour between the complainant and defendant, freeing them from the narrow and rigid constraints of
the exceptions in 41(3)(b) and 41(3)(c). Speaking in a House of Commons debate in 2002, the Under-Secretary of State for the
Home Department, Beverley Hughes, expressed an altogether different view of the House of Lords decision 3 :

"The judgment left it to trial judges to draw the line between cases in which previous sexual experience between a complainant
and an accused would be irrelevant, and those in which relevant sexual experience of that kind might be admitted … In leaving
the judgment to trial judges, the House of Lords judgment has altered the structured way in which it was envisaged the section
would be implemented by the courts."

This article seeks to contribute to the debate by examining judicial perspectives on these issues. The article sets out and discusses
selected findings from a research project whose main purpose was to examine judicial perspectives on the structure and operation
of s. 41 and on the relevance and admissibility of the complainant's prior sexual behaviour in sex offence cases 4 . One of the
underlying objectives of the project was to present a fuller picture of judges' reasoning on these issues than has been available
hitherto so that the continuing debate on the relevance and admissibility of such evidence and on the direction of any further
legislative reform may be fully informed by judicial perspectives. The research also examined the operation of similar legislation
in other jurisdictions to see whether the Home Office really has drawn upon the experience of rape shield legislation in other
jurisdictions, as Temkin suggests, or whether in reality the Home Office has failed to learn the lessons emerging from those
jurisdictions.

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For the research, interviews were conducted with 70 Circuit Judges in England and Wales (sitting at 18 Crown Courts) with 4
High Court Judges, 3 Lords Justices of Appeal and a Lord of Appeal in Ordinary. Two interviews were also conducted with
groups of advocates who have extensive experience of prosecuting and defending serious sex offence cases. The interviews
included questions about the origins, structure and operation of s. 41 and about the judges' perceptions of problems and issues
in this area. In *Arch. News 7 addition, four scenarios were used to gauge judicial thinking on a range of issues surrounding
the interpretation and application of s. 41 and on the admissibility and relevance of the complainant's prior sexual history.

The judges were largely agreed that had it not been for the timely intervention of the House of Lords in R v A (No.2) restoring
a measure of judicial discretion, s. 41 would have been unworkable and would have led to injustice, particularly in relation to
excluding evidence of prior sexual history between the complainant and defendant:

Were it not for R v A it would place all of us in insuperable difficulties, because of the requirement to exclude what would
otherwise be manifestly admissible. But since R v A my experience is that it works pretty effectively.

Many judges welcomed the decision in R v A (No.2), precisely because it restored much-needed judicial discretion in relation
to s. 41(3)(c) and the admissibility of evidence of sexual activity between the defendant and complainant:

The one thing that comes shining through is the Steyn test because that, as it seems to me, encapsulates what trial judges should
be asking themselves… The Steyn test applies where the section does bite but where the judge nevertheless has discretion, and
that's why it is so valuable and really ought to be flagged up.

One question that has arisen in the wake of the decision in R v A (No.2) is whether the effect of the decision has been effectively
to replace the hurdles and gateways of s. 41 with a completely open-ended discretion. The judges' evaluations of the benefits
of s. 41 indicate that the discretion restored by Lord Steyn has been applied restrictively, and that there has been no softening
of the very tight regime in respect of prior sexual behaviour with third parties. As one of the judges noted:

I think what it has achieved is that it has forced both the prosecution and defence to put their arguments forward… The
prosecution will formulate an argument to the judge and the defence will have to consider what they wish to cross-examine on
and put it within the framework of the Act and apply their minds to it very carefully."

Judges widely condemned the lack of discretion afforded them under the provisions. Many questioned the practicality and
wisdom of provisions such as s. 41 which seek to impose rigid controls on judicial discretion, drawing attention to the importance
of the particular facts of each case:

"It is very difficult to frame appropriate rules to apply to evidence which is infinitely variable. And it is the judge who has to
decide that with regard to the facts in the case before him. I think it would be a terrible mistake for Parliament to lay down
rules which we must inflexibly apply. I think it would be a recipe for filling the Court of Appeal even further. That is certainly
a recipe for injustice, massive injustice."

While it is hardly surprising that judges are critical of legislation that eliminates or severely constrains their discretion (as one
judge said, "We would say that wouldn't we"), the judges' comments echo the rejection of non-discretionary legislation in other
Commonwealth jurisdictions.

Developments in Canada have been influential throughout the Commonwealth. In her majority judgment in R v Seaboyer 83
D.L.R. (4th) 193 the Hon. Mrs. Justice McLachlin ruled that the former s. 276 of the Criminal Code violated the right of
the defendant to a fair trial and was therefore unconstitutional. Justice McLachlin argued that the blanket prohibition, subject
only to three specific exceptions, was fundamentally flawed on two counts: firstly, because it failed to distinguish between the
legitimate and illegitimate uses of prior sexual history evidence, and secondly, because it adopted a "pigeon-hole" approach
that amounted to "predicting relevancy on the basis of a series of categories" (at page 269).

As Justice McLachlin noted, the first flaw reflects a basic and mistaken assumption on the part of legislators that evidence
of sexual activity is invariably used for irrelevant and illegitimate purposes, and that consequently sexual activity evidence
is inherently suspect. Justice McLachlin further argued that the "pigeon-hole" approach was incapable of dealing adequately
with the fundamental evidentiary problem at stake because of its "reliance … on categories of admissible evidence which can

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never anticipate the multitude of circumstances which may arise in trials for sexual offences" (at page 270). To adopt Justice
McLachlin's phrase, the failings of the approach are "inherent in its concept."

Canada's rejection of the non-discretionary, pigeon-hole approach reflects the experience of non-discretionary legislation in
other jurisdictions. In Michigan, legislation that was designed specifically to remove judicial discretion has been rescued in the
appellate courts by the re-injection and restoration of judicial discretion 5 . Professor Galvin noted that the purpose behind the
Michigan provision was to strip judges of their discretion to determine the relevancy and admissibility of prior sexual history
evidence on a case-by-case basis. She observed that in practice, however, many of the appellate courts in the states that followed
the Michigan approach had construed the legislation as permitting the introduction of sexual history evidence even where it
was explicitly excluded by the statute. Accordingly, Galvin concluded:

The Hackett cases and others demonstrate that the Michigan approach to rape shield legislation is unworkable in actual operation.
The force and impact of the statutory language continues to erode as courts increasingly hold that the statutes do not really
mean what they say. In most instances, the courts have reached the correct results, but only by ignoring the clear language of
the statute and divining the underlying legislative purpose (at pp. 874-875).

The parallel between the intervention of the appellate courts in Michigan and in England and Wales is striking; R v A (No.2)
has achieved in respect of s. 41 precisely what the Michigan appellate courts achieved in respect of the Michigan rape shield
statute--the restoration of judicial discretion and thereby the rescue of legislation that would otherwise have been unworkable
and produced clear injustice.

The New South Wales experience of non-discretionary legislation is also of particular significance both because s. 409B Crimes
Act 1900 (NSW) is the only fully non-discretionary regime currently in operation and because the operation and reform of s.
409B was examined in a substantial and influential report of the New South Wales Reform Commission in 1998 6 .

*Arch. News 8 Several trial judges between 1990 and 1995 permanently stayed proceedings on the basis that the accused
would be unable to have a fair trial due to the exclusion of evidence by section 409B. For example, in M 7 , Allen J with whom
Gleeson CJ and Meagher JA agreed, made the following observations:

The legislature has endeavoured to foresee all the exceptions which justice requires and to provide specifically for them. It has
excluded all others. It has taken the risk that experience will throw up circumstances, which it has failed to foresee and expressly
provide for, in which denial of evidence disclosing or implying that the complainant has or may have had sexual experience
or lack of sexual experience, or has or may have taken part or not taken part in any sexual activity, results in injustice to an
accused at his trial. The wisdom of so Draconic a restriction upon judicial discretion and of so bold an assumption of perfect
prescience may be questioned.

The New South Wales Law Reform Commission considered in detail whether and to what extent judicial discretion should be
re-introduced, and concluded that the arguments in favour of a discretionary model were compelling:

Essentially, we consider that it [the discretionary model] is the only means of ensuring a fair trial (para. 6.101).

Parliament stated that the introduction of s.409B would not give rise to any injustice to the accused, because the exceptions in
s.409B provided for all the circumstances in which sexual experience was relevant. The "problem cases" have shown that this
was not so. In the Commission's view, it is not possible to foresee every situation in which evidence will be relevant to the facts
of an individual case, in order to be satisfied that injustice will not be done by inflexible rules. (para.6.102)

In our view, the experiences of other jurisdictions are an indication that a rules-based model for admissibility cannot operate
fairly in every case" (para 6.105).

The fact that s. 41 adopted the non-discretionary, pigeonhole approach is especially startling because the Government claimed,
during both the parliamentary debates and the House of Lords hearings in R v A (No.2), that their approach followed the Canadian
developments--when, as we have seen, these developments were in fact themselves based on an unequivocal rejection of that
approach.

In addition to examining s.41, the research also examined whether judges were allowing irrelevant questioning and evidence in
relation to the complainant's sexual behaviour in rape trials. Speaking Up for Justice, the 1998 report of the Interdepartmental

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Working Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System, 8 concluded that the
evidence suggests that sexual history evidence is used "in an attempt to discredit the victim's character in the eyes of the
jury" (at para. 9.63) and that there was "overwhelming evidence" that the present practice of the courts in relation to the use
of sexual history evidence was unsatisfactory.

The judges' responses suggested that far from allowing questioning and evidence in relation to sexual history to be admitted as
a matter of course, many judges approached the question of relevance and admissibility thoughtfully and with an awareness of
the dangers of admitting irrelevant evidence. For example, Scenario One raised the question whether the defendant should be
given leave to cross-examine the complainant (his step-daughter) about the circumstances of his alleged discovery of her having
sexual intercourse with her boyfriend to support his defence that she had a motive to fabricate the charge of rape. Although
judges ultimately agreed that the sexual context of the discovery should not be kept from the jury, the starting point of many
judges was to question the extent to which the sexual element was necessary and to think of ways in which it could be minimized
without misleading the jury and threatening the fairness of the trial, as the following comment exemplifies:

Before deciding whether the sexual bit of it went in, I would explore with Counsel whether he actually needs the sexual
intercourse in or whether it's enough to put to her that this was done out of spite because the father had prevented, fought to
end a relationship with the boyfriend … I would want to go through it with Counsel and say, now why do you need that? …
What does it add that he caught them having sexual intercourse as opposed to simply disapproving of her having a boyfriend at
her age or disapproving of this boyfriend and bringing it to an end? So I'd want to be sure that they really needed the catching
in the sexual intercourse.

Judges also distinguished between relevant and irrelevant sexual history in the other scenarios put to them. Indeed, one of
the most significant features to emerge from the interviews was the consistency of approach taken by judges and advocates in
relation to the particular questions of relevance and admissibility raised by the four scenarios. This consistency extended not
only to whether questioning should be allowed and evidence adduced, but also to the extent to which evidence and questioning
should be allowed.

Another theme that emerged from the interviews was that judges were highly sceptical of the argument that sexual history
evidence was overwhelmingly prejudicial and should therefore generally be excluded. One aspect of this issue is that it is
impossible to gauge prejudicial effect until one has determined the probative value of the evidence. With most critics assigning
very little probative value to sexual history evidence, it is not surprising that such evidence is regarded as more prejudicial than
probative. The judges' responses also challenged critics' notions of prejudicial effect in other ways too. The standard depiction
in the literature is that once the sexual history evidence has been adduced or even put to the complainant, irreversible and
substantial damage to the complainant is done. While judges acknowledged that sexual history evidence can affect a jury in
this way, they also pointed out that cross-examination on the complainant's sexual history and adducing evidence of it can
rebound on the defence, damaging the defence in the eyes of the jury.

One particular issue that has arisen concerns the breadth of the prohibition in s.41(4) on the use of sexual history evidence to
"impugn the credibility of the complainant." If interpreted literally, the language of the provision would appear to prevent any
reference to sexual history whenever it is being used to challenge the complainant's credibility.

The language of s.41(4) appears to go far beyond the original objective of prohibiting relevance claims based on the assumption
that women who engage in sexual behaviour are, for that reason, less worthy of belief, and the judges' responses to Scenario
One confirm that s. 41(4) is seen as an obstacle to the admissibility of relevant sexual history *Arch. News 9 evidence to
support the defence case that the complainant had a motive to fabricate the complaint:

I must say I find s. 41 very difficult and I must confess I am inclined to look at the thing and decide what's fair then see how I
can get it in. Because in a sense it does impugn her credibility but then that's what fighting cases is all about. I think what it's
getting at in a rather muddled way is it's trying to prevent questioning that simply attacks the reputation of the witness--because
she's had sex, she lies, she's that sort of girl. But it's very difficult; the wording does make it very difficult.

Fortunately, appellate courts are beginning to confine the scope of 41(4), and in R v Martin [2004] EWCA Crim 916, Mr. Justice
Crane has indicated that he might be prepared to read down s. 41(4) where it is necessary to do so to allow questioning or
evidence essential to a fair trial.

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The question of "taking the sex out of the situation' was also raised in the judges' discussions, both in relation to supporting a
motive to fabricate and in relation to the question of how much sexual history was necessary to provide essential background
evidence where there was a prior relationship between the complainant and defendant. With regard to Scenario One the judges
were generally agreed that the sexual context of the discovery should be before the jury because to keep it from them would be
artificial, would provoke speculation and would prevent the jury from being able to make a proper assessment of the seriousness
of the argument and hence of the plausibility of the defence's case that the complaint was a malicious one.

One does have to refer to the subject matter of the argument because the more intense the argument, the more the argument
is related to a reason why the child might then fabricate a case against the defendant, the more the jury have to know about
it. We all have arguments. It could have been over a bar of chocolate. Something far more fundamental might in turn lead to
a fabrication of this kind being made.

However, another strong theme of the judges' responses was the need for limits on the questioning and the absence of any need
to cross-examine on the details of the sexual intercourse.

I see no reason why he should not be allowed to cross-examine. However, there's no need to cross-examine about sexual
intercourse, and you can direct that it can be mentioned but only in the context of, you're making this up because he caught
you having sexual intercourse. She admits having sexual intercourse. So you don't need to dwell on what they were doing or
how often they've done it or anything else.

Conclusion
Critics in this area have long argued that judges have failed to control the use of irrelevant and prejudicial sexual history
evidence, and that the only effective solution to the problem is to remove judicial discretion. Speaking Up For Justice shared
this view, arguing that sexual history evidence is used "to discredit the victim's character in the eyes of the jury" and concluding
that the law "should be amended to provide a more structured approach to decision making" (at paras. 9.63 & 9.71).

The research summarised above challenges this widespread view. Firstly, it suggests that judges are generally far more thoughtful
in relation to sexual history evidence than is supposed, and that they take great care when making decisions to allow questioning
or evidence and how much to allow. Questions of relevance are inevitably subjective, and in this area are often difficult, but the
consistency of the judges, both male and female, and of the advocates, demands a considered response. Are the vast majority
of judges and advocates consistently getting these questions wrong?

Secondly, the argument overstates and largely assumes the necessity for a legislative response to the problem. In rejecting
alternative ways of addressing the situation, Speaking Up For Justice cited merely the "experience of the last twenty years" (at
para. 9.65). Taken on its own terms, the argument places inordinate faith in the power of legislative fiat to force through change
in judicial behaviour, while ignoring the critical role of judicial training. Helena Kennedy Q.C. emphasised the importance of
training in this context:

I think women's groups do a disservice to themselves by making the argument for a blanket ban on all questions to do with
sexual history … the real thing we need is very good training for judges on how easily one can be drawn into unfairness in this
area by allowing cross-examination which basically is about undermining the woman in the eyes of the jury (The Guardian,
20th March 2001, at p.17).

Many judges spoke very highly of the Judicial Studies Board training in the interviews and their responses to the four scenarios
do suggest that training has had a substantial and positive effect.

Thirdly, the clear message emerging from the operation of non-discretionary legislation elsewhere and from the rejection of
non-discretionary regimes in Canada and other commonwealth jurisdictions is that, whatever problems there might be with
the introduction of irrelevant sexual history evidence, non-discretionary legislation is neither an appropriate nor an effective
response because it is unworkable.

In R v A (No.2), Lord Steyn observed of s. 41 that "while the statute pursued desirable goals, the methods adopted amounted to
legislative overkill" (at para 43). His observation recalls the conclusion reached by the Hon. Mrs. Justice McLachlin in relation
to the Canadian legislation (R v Seaboyer, at p. 274):

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In achieving its purpose--the abolition of the outmoded, sexistbased use of sexual conduct evidence--it overshoots the mark
and renders inadmissible evidence which may be essential to the presentation of legitimate defences and hence to a fair trial.
In exchange for the elimination of the possibility that the judge and jury may draw illegitimate inferences from the evidence, it
exacts as a price the real risk that an innocent person may be convicted. The price is too great in relation to the benefit secured,
and cannot be tolerated in a society that does not countenance in any form the conviction of the innocent.

The Home Office would do well to reflect upon these observations, on the views of experienced trial judges and on the experience
of similar legislation in other jurisdictions before considering any further reform of s. 41. In particular, the Home Office must
address the issue of judicial discretion with far greater clarity and consistency than they have so far.

Footnotes

1 Birch, D. "Rethinking Sexual History Evidence: Proposals for Fairer Trials" [2002] Crim. L.R. 531 at p.553
2 Temkin, J. "Sexual History Evidence--Beware the Backlash" [2003] Crim. L.R. 217 at p.242
3 HC Hansard, 24 April 2002 (pt 4), Col 126WH
4 The full text, Judicial Perspectives on Section 41 of the Youth Justice and Criminal Evidence Act 1999 (July 2004)
should be available shortly on the CBA website www.criminalbar.com
5 See Galvin H. "Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade" (1986)
70 Minnesota Law Review 763
6 NSW Law Reform Commission Report 87 (1998) Review of s. 409B of the Crimes Act 1900 (NSW)
7 M (1993) 67 A Crim R 549, at p. 558 cited in Regina v P.J.E. No. 060216/95 Supreme Court of NSW
8 "Speaking Up for Justice" Report of the IWG on the Treatment of Vulnerable or Intimidated Witnesses in the
Criminal Justice System. Home Office: 1998, especially paras. 9.56-9.72.

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