Interpretation of Section 41 of the Youth Justice and Criminal Evidence Act 1999

2 July 2001

This case may prove to be a landmark decision. There are two main aspects to the case: first, how to interpret Section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA); secondly, the scope of Section 3 of the Human Rights Act 1998 (HRA).

How to Interpret S.41 YCJEA

The thrust of their Lordships rulings is that there is a strong public interest in the "victim" of a sexual assault or rape being protected from unnecessary questioning about previous sexual behaviour and that this amounted to a right on the part of the victim, but that this right cannot be allowed to deprive the Defendant of his - sometimes countervailing - right to a fair trial. It is between these two currents that the Court felt that it had to navigate. It is important to the understanding of this judgement to appreciate the approach the Courts have taken to Article 6 of the European Convention on Human Rights. The right to a fair trial is absolute, although the constituent rights within it are not; those constituent rights are subject to the principle of proportionality (see R v Forbes [2001] 2 WLR 1 and Brown v Stott [2001] 2 WLR 817). Whilst the distinction between the right to a fair trial on the one hand, and the rights constituent in it on the other, sometimes has the appearance of a distinction without a difference, it is clearly going to form a cornerstone of much of the Courts’ approach to Art. 6, as it does in this case. This case, like so many, was a case of balancing the rights of the victim with the rights of the Defendant to a fair trial. Although their Lordships did not speak with one voice, the effect of their Opinions is clear. First, the majority view was that domestic principles of interpretation would not allow for an interpretation of S.41 of YJCEA which was consistent with the Defendant being guaranteed a fair trial. Secondly, even applying the wider interpretative approach required (a fact emphasised by the Court) by S.3 of HRA, the words "at or about the same time" in S.41(3)(b) of YJCEA could not be stretched beyond 24 hours at most. Thirdly, that in relation to the test in S.41(3)(c) of YJCEA they could, using the wider interpretative approach, interpret it in a way that was consistent with a fair trial. Thus, where the sexual behaviour about which the Defendant wishes either to ask questions or adduce evidence is "alleged to have been, in any respect, so similar (to the circumstances of the sexual behaviour alleged to be the subject of the present trial) that the similarity cannot reasonably be explained as a coincidence", the test is, "whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial..." (Lord Steyn, para. 46). Precisely what this means in practice is to be left to the trial judge. Some further guidance is provided. For example, it is clear that evidence or questions are unlikely to be held sufficiently relevant if they relate to sexual behaviour of the Complainant with someone other than the Defendant. Similarly, they will not be sufficiently relevant if they go only to the Complainant’s credibility. In these circumstances, the balance comes down in favour of the Complainant's rights. Lord Hutton goes further at para. 151-2 when he opines that a previous affectionate relationship between the Complainant and the Defendant is likely to be relevant, as opposed to a one-off act of sexual intercourse between the two, which is not. The rationale is apparently that a history of affection is more likely to make a Complainant consent than a history of mere physical desire! Whilst one may question whether this is in fact true in the everyday world examined in most sexual offence trials, the principle being applied is that which runs through this case: is the potential probative force of the evidence or questions about the Complainant’s previous sexual behaviour so strong that it outweighs the rights of the Complainant and the public interest in maintaining those rights? The test can perhaps be seen as analogous to the probative force verses prejudicial effect test in relation to "similar fact" evidence in DPP v P [1991] 2 AC 447. Whilst that test was insufficient for the majority to hold that domestic law would allow for an interpretation of S.41 that would be consistent with a fair trial, the test appears to be that the probative force of the evidence or questions about the Complainant’s previous sexual behaviour must be sufficiently strong to outweigh, on the scales of proportionality, the rights of the Complainant to keep private her previous sexual behaviour. Lord Clyde did, unlike the majority of their Lordships, find that domestic principles of interpretation allowed for an interpretation of S.41 of YJCEA consistent with a fair trial. He did so by applying the principles of law developed in domestic "similar fact" cases. He emphasised that what was needed was similarity, not identity, between the two sets of behaviour, and he further emphasised that the coincidence did not need to be rare or bizarre, but it merely had to go beyond that which could reasonably be explained as coincidence (see para. 135). Whilst the majority view that S.3 of HRA did need to be invoked is to be preferred, the elaboration by Lord Clyde is nonetheless likely to provide some help to judges trying to apply the principles to particular factual situations. The reality is, however, that whilst para. 46 of Lord Steyn’s speech is likely to be the first port of call in cases where consent is the issue and where the Defendant wishes to question the Complainant or adduce evidence about her previous sexual behaviour, the details of what it means in practice are still far from clear. Trial judges have been left with the primary responsibility to steer a course using the stars of principle. Perhaps this is all that can be expected at this early stage. How those principles work out in practice will have to await particular decisions.

The Scope of Section 3 of HRA

This is a very important decision generally on how to apply the new interpretative principles given birth by S.3 of HRA. Their Lordships, particularly Lord Steyn, state expressly that under domestic principles of interpretation it is not possible to see S.41 as compatible with the right to a fair trial, but that this objective can readily be achieved invoking the wider approach not only allowed, but required, by S.3 HRA. There does not need to be any ambiguity of language, as before. It will sometimes be necessary to adopt an interpretation that is linguistically strained. The express language will be read down and provisions will be implied. Moreover, it would be very rare indeed that the Courts would find that a statute is incompatible. (See Lord Steyn, para. 44.) This paragraph should be carried in the top pocket of every practitioner who wishes to argue for a particular statutory interpretation. However, two notes of caution need to be sounded. First, it is essential to approach the issue from a rights-based perspective. It seems highly likely that the absolute nature of the right to a fair trial under Art. 6 will rarely be enough, since one is most often going to be relying upon a constituent right – whether it is an implied right, such as the right not incriminate oneself, or a right expressly stated within Art. 6, such as the right to examine or to have examined witnesses who give prosecution evidence. The principle of proportionality and the necessity to show that the balance of rights comes down in favour of the particular interpretation being contended for will therefore be crucial. Secondly, this was a glaring example of a statutory provision that was almost universally criticised as having the potential for unfairness. Even then, Lord Hope was not prepared to re-interpret S.41 in light of S.3 of HRA. Indeed, he cautioned against judges becoming legislators and he said, "the entire structure of section 41 of YJCEA contradicts the idea that it is possible to read into it a new provision which would entitle the court to give leave whenever it was of the opinion that this was required to ensure a fair trial." (See para. 109.) Whilst this was not the majority view, it illustrates that many judges will be reluctant to apply the new principles of interpretation and will need much persuasion that such an approach is necessary in a particular case.