Case Facts
The defendant was charged with rape. He sought leave under s 41 Youth Justice and Criminal Evidence Act 1999 to adduce evidence of an alleged consensual sexual relationship with the complainant that had existed over the preceding three weeks, with the most recent act of intercourse having taken place one week before the alleged offence. The defendant also claimed that the complainant had engaged in sexual intercourse with his friend shortly before the incident.
At first instance, the trial judge ruled that the complainant could be cross-examined regarding the incident involving the defendant's friend, treating it as falling within s 41(3)(b) Youth Justice and Criminal Evidence Act 1999 as contemporaneous with the charged incident. However, the judge ruled that evidence of any prior consensual sexual relationship between the defendant and the complainant was inadmissible, whether under s 41(3)(b) or at all.
The Court of Appeal reversed the trial judge's ruling in relation to the friend's activity. On the Crown's concession, the Court of Appeal further ruled that evidence of the defendant's alleged prior sexual relationship with the complainant was relevant to his belief in her consent and might be admitted under s 41(3)(a) Youth Justice and Criminal Evidence Act 1999, but that such evidence was inadmissible on the issue of consent itself.
The Director of Public Prosecutions appealed to the House of Lords. The defendant indicated that he would invite the House to construe s 41 compatibly with Article 6 of the European Convention on Human Rights, applying the interpretive obligation under s 3 Human Rights Act 1998, or alternatively to seek a declaration of incompatibility under s 4 Human Rights Act 1998. The Secretary of State was joined as a party to the appeal on his own petition.
The certified point of law of general public importance before the House was: "May a sexual relationship between a defendant and complainant be relevant to the issue of consent so as to render the exclusion under s 41 Youth Justice and Criminal Evidence Act 1999 a contravention of the defendant's right to a fair trial?"
Held
The House of Lords dismissed the Director of Public Prosecutions' appeal and remitted the matter to the Crown Court judge for such further inquiry as was necessary in the event of any further application by the defendant under s 41.
The House held, first, that the legislature had pursued a legitimate objective in enacting s 41 Youth Justice and Criminal Evidence Act 1999: namely, to protect complainants from indignity and humiliating questioning and to correct the twin assumptions that a woman who had prior sexual intercourse was more likely to consent on the occasion in question, or was less worthy of credit. Nevertheless, a prior consensual sexual relationship between the complainant and the defendant might, in the circumstances of an individual case, be relevant to the issue of consent.
Secondly, the temporal restriction in s 41(3)(b) Youth Justice and Criminal Evidence Act 1999 could not be construed so as to permit evidence or questioning other than in respect of acts that were truly contemporaneous with the incident charged.
Thirdly, under s 41(3)(c) Youth Justice and Criminal Evidence Act 1999, construed where necessary by applying the interpretive obligation in s 3 Human Rights Act 1998, and always giving due regard to the importance of protecting the complainant from indignity and humiliating questioning, the test of admissibility was whether the evidential material was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under Article 6 of the European Convention on Human Rights. Where that test was satisfied, the evidence should not be excluded.
Since the evidential material before the House related only to the bare assertion of a previous sexual relationship with the complainant, there was insufficient material upon which to assess whether it fell within s 41(3)(c). The matter was accordingly remitted to the Crown Court judge.
Ratio Decidendi
The central ratio of this decision concerns the proper interpretation of s 41 Youth Justice and Criminal Evidence Act 1999 in light of the interpretive obligation imposed by s 3 Human Rights Act 1998 and the right to a fair trial under Article 6 of the European Convention on Human Rights.
The House of Lords affirmed that the right to a fair trial under Article 6(1), assessed by reference to the overall fairness of the proceedings, is absolute and fundamental. A defendant's right to a fair trial would be infringed if relevant evidence were excluded and its absence led to an unjust conviction. However, in giving effect to those rights, the court may also take into account the interests of the complainant and of society more generally.
Applying s 3 Human Rights Act 1998, the House held that s 41(3)(c) Youth Justice and Criminal Evidence Act 1999 must be read and given effect in a manner compatible with Convention rights. This required the court to read into s 41(3)(c) a test of admissibility based on whether exclusion of the evidence would endanger the fairness of the trial. Where the evidence of a prior sexual relationship between the defendant and the complainant is so relevant to the issue of consent that its exclusion would render the trial unfair, it must be admitted.
The House further held that the temporal restriction in s 41(3)(b) was not capable of being construed to extend beyond acts that were truly contemporaneous with the charged incident, and accordingly offered no gateway for evidence of a prior ongoing relationship.
This decision is a landmark authority on the breadth of the interpretive obligation under s 3 Human Rights Act 1998, demonstrating that courts may read words into legislation to achieve compatibility with Convention rights provided they do not contradict the fundamental features of the statutory scheme. It also illustrates the tension between the protection of rape complainants and the defendant's right to adduce relevant evidence in his defence.
Obiter Dicta
The House acknowledged the legitimacy of Parliament's policy objective underlying s 41 Youth Justice and Criminal Evidence Act 1999 — in particular, the aim of dispelling prejudicial assumptions about the significance of a complainant's prior sexual conduct. Their Lordships emphasised that the protection of complainants from intrusive and demeaning cross-examination is a weighty interest that courts must always bear in mind when assessing applications under s 41, even where admission of the evidence is ultimately required to preserve trial fairness. These observations reinforce the principle that the interpretive exercise under s 3 Human Rights Act 1998 does not license wholesale disregard of the statutory purpose, but must proceed in a manner that gives appropriate weight to the competing interests at stake.