R v A (No 2)

The House considered whether section 41 of the Youth Justice and Criminal Evidence Act 1999 (the "rape‑shield" provision) improperly excluded evidence of prior sexual behaviour between complainant and accused so as to breach the accused's article 6 right to a fair trial. The court held that section 41(3)(b)'s temporal phrase "at or about the same time" must be given a narrow ordinary meaning and will not cover events separated by days or weeks. However, applying the interpretative obligation in section 3 of the Human Rights Act 1998, section 41(3)(c) can be read so as not to exclude, in every case, evidence or questioning about prior sexual behaviour with the accused: evidence may be admitted under section 41(3)(c) where it is so relevant to the issue of consent that excluding it would render the trial unfair. The appropriate course was to dismiss the Crown's appeal and remit to the trial judge to reconsider the application for leave in the light of this construction.

This is an interlocutory appeal about the admissibility of evidence and cross‑examination relating to an alleged prior consensual sexual relationship between the respondent and the complainant. The respondent was charged with rape and his defence was consent (and alternatively honest belief in consent). At a preparatory hearing the trial judge excluded questioning and evidence about the earlier relationship under section 41 of the Youth Justice and Criminal Evidence Act 1999. The respondent appealed to the Court of Appeal, which allowed his appeal in part and certified a question to the House of Lords. The Crown obtained leave to appeal to the House; the Secretary of State for the Home Department intervened.

The legal issue was whether a sexual relationship between defendant and complainant may be relevant to actual consent such that its exclusion under section 41 would contravene the defendant's article 6 right to a fair trial. The Lords examined: (i) the text and structure of section 41 (notably subsections (3)(b) and (3)(c)); (ii) the interpretative duty in section 3 of the Human Rights Act 1998 to read primary legislation compatibly with Convention rights if possible; and (iii) comparative models (including revised Canadian provisions) and policy material concerning protection of complainants.

The House concluded: (i) section 41(3)(b) must have a narrow temporal scope (not extending to relationships a week earlier in the ordinary meaning); (ii) section 41(3)(c), though drafted tightly, can be read under section 3 HRA so that where evidence of prior sexual behaviour with the accused is logically and sufficiently relevant to consent and its exclusion would render the trial unfair, the judge may admit it; (iii) the rebuttal provision in section 41(5) is not a general cure; (iv) the case should be returned to the trial judge to reconsider leave in light of this reading. The appeal to the House was dismissed.

• Nature of application: interlocutory appeal on admissibility of evidence; relief sought was declaration that section 41 exclusion rendered trial unfair and, if necessary, a declaration of incompatibility or reading down under section 3 HRA.
• Issues framed: (a) scope of "at or about the same time" in s41(3)(b); (b) meaning and reach of s41(3)(c) as a similarity gateway; (c) whether section 41 breaches article 6; (d) whether s41 can be read compatibly under s3 HRA or whether a declaration of incompatibility is required.
• Court's reasoning (concise): s41(3)(b) is narrow in time; s41(3)(c) must be construed, so far as possible under s3 HRA, to permit admission where exclusion would make the trial unfair; trial judges retain responsibility to apply the test carefully, balancing protection of complainants against the accused's right to a fair hearing.

Appeal dismissed. The House held that section 41(3)(b) is to be given a narrow temporal meaning and will not extend to events separated by days or weeks. Section 41(3)(c) should, insofar as possible under section 3 of the Human Rights Act 1998, be read so that evidence or questioning about prior sexual behaviour with the accused can be admitted where it is sufficiently relevant to consent that its exclusion would render the trial unfair. The matter was remitted to the trial judge to apply that test.

Appeal from the Crown Court preliminary ruling; interlocutory appeal to the Court of Appeal (Criminal Division) [2001] EWCA Crim 4 (order of 15 January 2001) which allowed the defendant's appeal in part and certified a question; Crown obtained leave to appeal to the House of Lords; Secretary of State intervened.