Commissioners of Customs and Excise v. Liverpool Institute for Performing Arts

Evidence of previous sexual behaviour between a complainant and an accused may be relevant to consent, although it cannot itself prove consent on the occasion charged. Under section 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999, read with section 3 of the Human Rights Act 1998, such evidence must be admitted where it is so relevant that exclusion would endanger the fairness of the trial under article 6. Relevance depends on time, circumstances and the nature of the relationship; the bare fact of previous consensual intercourse may be insufficient. The court must protect complainants from indignity and humiliating or irrelevant questioning. Section 3 imposes a strong interpretative obligation, and a declaration of incompatibility is a remedy of last resort.

The respondent was awaiting trial for rape. He maintained that the complainant had initiated consensual intercourse and that the incident formed part of a sexual relationship lasting about three weeks. At a preparatory hearing, the trial judge refused permission to question the complainant or adduce evidence about that alleged relationship.

The Court of Appeal allowed the respondent’s interlocutory appeal in [2001] EWCA Crim 4. It held that the evidence could be admitted under section 41(3)(a) of the Youth Justice and Criminal Evidence Act 1999 on the issue of honest belief in consent, although not under the ordinary meaning of section 41 on the issue of actual consent. The Crown appealed.

The central issue was whether exclusion of a previous sexual relationship from consideration on actual consent could contravene the accused’s right to a fair trial under article 6, and whether section 41 could be read compatibly under section 3 of the Human Rights Act 1998.

1. Appeal dismissed unanimously. The case was returned to the Crown Court so that the trial judge could reconsider the application under section 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999 in light of the House’s decision.

2. Per Lord Steyn, whose formulation was expressly accepted by Lord Slynn, Lord Clyde and Lord Hutton, section 41(3)(c) must, where necessary, be read under section 3 of the Human Rights Act 1998 as subject to an implied fair-trial requirement. Evidence or questioning concerning prior sexual behaviour between the complainant and accused is admissible where it is so relevant to consent that exclusion would endanger the fairness of the trial under article 6. The trial judge must give due regard to protecting the complainant from indignity and humiliating questions.

3. Per Lord Steyn, prior sexual relations may illuminate the complainant’s state of mind but cannot prove consent on the occasion charged. Relevance and sufficiency of proof are distinct. Lord Hutton similarly considered that a recent close and affectionate relationship might be relevant, while isolated acts without that background might not be. The issue is fact-sensitive and must be determined by the trial judge.

4. The alleged conduct occurring about one week or more before the charged event could not fall within the ordinary meaning of “at or about the same time” in section 41(3)(b). That temporal provision could not be expanded sufficiently even through section 3 of the 1998 Act.

5. Evidence concerning the prior relationship could be admitted under section 41(3)(a) on the distinct issue of an honest belief in consent. Its extent remained subject to section 41(2)(b), which permits leave only where refusal might render a conclusion on a relevant issue unsafe.

6. Lord Hope agreed with the dismissal and remittal but took a narrower route. On the limited allegations then available, the bare fact of previous consensual intercourse was irrelevant to actual consent, so incompatibility had not yet been demonstrated. If fuller facts made use of section 3 necessary, however, the trial judge should apply Lord Steyn’s test.

1. House of Lords: The Crown’s appeal was dismissed unanimously. The Court of Appeal’s order was not set aside, and the matter was returned to the trial judge for reconsideration under the interpretation adopted by the House.
2. Court of Appeal (Criminal Division): In [2001] EWCA Crim 4, the respondent’s interlocutory appeal was allowed. Evidence about the alleged relationship was held admissible on honest belief in consent, though not under the ordinary meaning of section 41 on actual consent. Leave to appeal was granted to the Crown.
3. Crown Court: At a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996, the judge excluded questioning and evidence about the alleged prior sexual relationship with the respondent.