My Lords, I rise to move this amendment tabled in the names of my noble friends Lord Paddick, Lady Ludford and myself. The appeal in the Ched Evans case has raised fears that complainants will be deterred from reporting rape because they might be cross-examined about their sexual history under Section 41 of the Youth Justice and Criminal Evidence Act 1999. Those fears are real and if they are justified that would suggest that a change to Section 41 is necessary. I say at the outset that this is surprising because ever since Section 41 was passed, it has been assumed that it is very restrictive
and that evidence of a complainant’s previous sexual history may be adduced or cross-examination allowed only in very unusual circumstances.
In 2001 in R v A (No 2), reported in 2002 on page 45 of 1 Appeal Cases, the noble and learned Lord, Lord Steyn, said,
“my view is that the 1999 Act deals sensibly and fairly with questioning and evidence about the complainant’s sexual experience with other men. Such matters are almost always irrelevant to the issue whether the complainant consented to sexual intercourse on the occasion alleged … or to her credibility”.
Section 41(3) of the 1999 Act provides that evidence or proposed cross-examination to be conducted must relate to sexual behaviour that is so similar to the defendant’s account of the incident in issue that the similarity cannot be explained as a coincidence.
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The Court of Appeal held that the Evans case was a rare case. Lady Justice Hallett pointed out that to be admissible, evidence or cross-examination did not have to relate to the sexual conduct of the victim that was bizarre or unusual, and in that she may have been departing from what had previously been thought the correct approach. What she said that it merely had to be sufficiently similar that it could not be explained as a coincidence. The Court of Appeal dealt with this as a matter of fact and degree, and of course in that it was plainly right to do so.
The Ched Evans case, however, has generated a wave of protest and it may be that on the facts of that case there was a borderline issue. It may be that the public view of the alleged victim’s conduct might not strike everyone as meeting that test. But it has provoked calls for a complete ban on cross-examination or evidence of a victim’s previous sexual history under any circumstances. In promoting this amendment, we have sympathy with those calls. The unwillingness of women to come forward with reports of rape is real and understandable, and as a result many offences go unprosecuted, as was said in the previous debate. We must do everything we can to ensure that rapes are reported. However, there may be cases where a dispassionate observer might think that the exclusion of a relevant account of previous sexual behaviour could lead to genuine injustice and unfair convictions where consent was an issue.
We have concluded that the call for a precipitate change to Section 41 to bring in a complete ban on evidence or cross-examination about previous sexual history would be unwise without detailed knowledge of how the exceptions to the ban on the introduction of sexual history have been used since 1999. We therefore welcome the Attorney-General’s response on 27 October when he said:
“We need to understand whether a change in the law is appropriate and, if not, whether it is sensible to look at the guidance that is given to judges about when such evidence is admissible”.
Our amendment calls for a report on the operation of Section 41 on applications to court for adducing evidence or for cross-examination, on the grants and refusals of such applications, and on whether prosecutions have been dropped for failure to be able to adduce that evidence. We are aware of only one 2006 study for the
Home Office on this issue and little appears to have happened as a result. I invite the Minister to say whether anything has happened.
One further point that I would make before closing is that it seems surprising that the statement of reasons of the Criminal Cases Review Commission for the review of Mr Evans’s conviction under the Criminal Appeal Act 1995 or the statement of reasons given for any other such review are not publicly accessible. The reason for that is that Section 2 of the 1995 Act is drawn to provide that disclosure by officers of the commission of the statement of reasons is an offence, although disclosure by the proposed appellant— Mr Evans in that case—would not be an offence and he could publish the reasons if he wished.
I invite the Minister and the department to look at this because it seems odd. A review is ordered by the commission on the basis that it has come to light that there is relevant and admissible evidence that was not available at trial and that may undermine the safety of the conviction. Why should it be that after the appeal and any retrial are over, and any possible risk of damage from publication has passed, the statement of reasons should not be available in full to enable the public to understand what led to the Court of Appeal’s reconsidering the conviction in the first place? I beg to move.