That introduces the question about the complainant’s sexual history; I do not think the noble and learned Lord addressed that when he opened the case. The basic position in relation to that issue is stated in Section 41(1) of the 1999 Act, which says that
“no evidence may be adduced, and … no question may be asked in cross-examination,”
where
“a person is charged with a sexual offence … except with the leave of the court”.
Amendments 286 to 291 are concerned with tightening up the circumstances in which leave may be given. The noble and learned Lord, Lord Falconer, would not allow by these amendments such evidence whenever the issue of consent arises, whether at the same time or same event as the subject matter of the charge or where there is such similarity in the sexual behaviour of the complainant to the charge that the similarity cannot reasonably be explained as a coincidence.
3.30 pm
The noble and learned Lord’s amendment sets out the criteria which the judge “must” take into account, none of which is objectionable, save that it amounts to teaching the judge how to do his job. Perhaps it is
useful to inform the public of the factors which a judge considering an application must consider, but I am sure a judge would consider those factors anyway at the present time.
I am, however, dubious about the noble and learned Lord’s Amendment 288, which denies any further application being made during the course of the trial. Proposed new Section 43A states that
“no judge may allow such application or admit any such questions or evidence.”
Every case is different. All sorts of new evidence may come to light in the course of the trial when publicity is given; that is one reason why the name of the defendant is given in a sexual case, even though the name of the complainant is withheld.
I can understand that the noble and learned Lord is anxious to ensure that an accused cannot hold an application to his chest with a view to springing it upon the prosecution and the complainant at the time of trial, but I do not believe that removing the discretion of the judge entirely to allow such applications in the course of the trial is the right way to proceed. By contrast, I support the noble and learned Lord’s Amendment 289, which would give the complainant a right to be heard on an application to introduce sexual history and to appeal the decision.
As for Amendments 290 and 291, if the data suggested is not being collected already, then the Ministry of Justice is in dereliction of its duty. Equally, I would agree that the investigation of rape and rape complaints and the admissibility of cross-examination of complainants on their sexual history should be the subject of training, but I would be surprised to find that such training does not already take place.