Like the tide or the relentless ignorance of Iain Duncan Smith, the rhythm of certain recurring natural phenomena offers a comfort of certainty in an otherwise torrid and unpredictable world. One such inevitability was the reignition of the “Ched Evans row“, as media fiat demands it be termed. After several heady weeks in which almost all concerned abandoned calm and reason to soak in a pool of righteous, misinformed anger over cross examination of complainants on their sexual history and the meaning of the Court of Appeal ruling in Evans, there was a period after we all got out and dried off when tempers cooled and a serendipitous peace descended.
It could never last. It was never intended to. That much was known when the government announced a review into the operation of section 41 of YJCEA – the legal provision setting out the limited circumstances in which evidence may be adduced or questions may be asked relating to previous sexual behaviour of a complainant in a sex case. We do not yet have the review, but yesterday nevertheless brought a pre-emptive legislative response, in the form of a Private Members’ Bill introduced by Plaid Cymru MP Liz Saville-Roberts.
The Bill, dubbed as a “Rape Shield”, has gathered attention since the weekend, as Ms Saville-Roberts trailed it across various media platforms. Explaining her premise, Ms Saville-Roberts wrote in The Times yesterday:
“So what’s the problem? It seems that rather than being invoked occasionally as originally intended section 41 is being over-ridden in courts to the degree that its effectiveness as a rape shield is weakening. This was thrown into sharp definition by the Ched Evans retrial. What was previously presumed to be a legal resort for extraordinary circumstances was presented as a successful defence strategy across the popular press and social media, which begs the question: from now on will every man charged with rape seize on this case as a get-out-of-jail-free card, and instruct his lawyers accordingly?”
Counting slowly to ten and fighting the urge to scream “THE ONLY PEOPLE PRESENTING THE CHED EVANS RULING “AS A SUCCESSFUL DEFENCE STRATEGY ACROSS THE POPULAR PRESS AND SOCIAL MEDIA” AND SUGGESTING THAT DEFENDANTS WILL UNIVERSALLY ADOPT IT AS A FORM OF PRECEDENT WERE NOT DEFENDANTS OR DEFENCE LAWYERS BUT YOU, THE MISINFORMED MOB RESISTANT TO THE STRONG LEGAL CONSENSUS THAT EVANS SET NO MEANINGFUL PRECEDENT”, I shall accept, for the sake of argument, the premise that section 41 is being too loosely interpreted by Crown Courts, and that judges are permitting lines of questioning that they shouldn’t. I will respectfully observe that Ms Saville-Roberts’ reliance upon an anecdotal “dossier of victims’ harrowing experiences” collected by charity Voice4Victims, as evidence for her proposition that section 41 is insufficiently restrictive, is a little unscientific – a complainant, who is not legally trained, was not present during the judge’s ruling on the section 41 application and has a personal stake in the case, is not best placed to impartially assess the objective lawfulness, relevance or propriety of the questions on sexual history – but let’s not refight old battles about what precedent Evans sets or whether section 41 is or is not being correctly applied. Let’s assume that Ms Saville-Roberts is right, and consider the Bill presented yesterday.
As a Private Members’ Bill at a first reading, we must allow for this being very much a first draft. But even so, it is of a standard, it has to be said, which my pupil supervisor would have merrily set alight with his cigarette lighter had I presented it to him as an example of my drafting. The first clause of the Sexual Offences (Amendment) Bill deals with the proposed “Rape Shield”, and reads as follows:
1. Restriction on evidence or questions about complainant’s sexual history
(NONE)In section 41 of the Youth Justice and Criminal Evidence Act 1999 after
subsection (1) there shall be inserted the following subsection―
“(2) A Court in making a determination in respect of subsection (1) may
require that the cross examination of a complainant shall not involve
any matter appertaining to their appearance, behaviour or their sexual
history with any unrelated third parties regardless of the nature of the
complainant‘s alleged behaviour either before or subsequent to the
current proceedings nor should such matters be admissible as evidence
if the purpose is to undermine the credibility of the complainant unless
it would be manifestly unjust to treat them as inadmissible.”
That’s quite a mouthful. Let’s break it down. Subsection (1) of section 41 YJCEA 1999, as a brief reminder, provides the general rule that:
(1)If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a)no evidence may be adduced, and
(b)no question may be asked in cross-examination,
by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
The remainder of section 41 sets out the limited exceptions under which leave may be granted, namely the circumstances set out in subsections (3) and (5).
So the new subsection (2) presumably seeks to add a further compulsory qualification to the general circumstances in which the judge can give leave under (1). I say presumably, because it is in fact entirely unclear what the subsection is supposed to achieve. Having read it repeatedly, the only way to begin to analyse its intended effect is to look at it line by line. In so doing, I shall refer to the proposed new subsection (2) as subsection (1A) (as it ought properly be), to avoid confusion with the existing subsection (2).
(1A) A Court in making a determination in respect of subsection (1) may require that the cross examination of a complainant shall not involve…”
Right from the off, we see that this isn’t a mandatory restriction at all. It simply affords the judge a discretion as to whether to apply the qualifications that follow. Which, if your complaint is that judges are presently not exercising their discretion in this area correctly, appears an odd solution.
As to exactly what type of questions the judge may prohibit, we’ll turn to the substance momentarily, but it assists to skip to the end to get an overview of the purpose. Doing so gives us:
(1A) A Court in making a determination in respect of subsection (1) may require that the cross examination of a complainant shall not involve [various matters] if the purpose is to undermine the credibility of the complainant.”
This gets to the nub of the (entirely proper) objection that Ms Saville-Roberts has to evidence of sexual behaviour being used to discredit complainants, this being one of the “twin myths” – (i) “promiscuous” women are less likely of belief, and (ii) are more likely to have consented to sexual intercourse – that section 41 was designed to combat. Firstly, given that this Bill is presented as the panacea to the “Ched Evans problem”, it bears constant repetition that the reason for the admission of the sexual history evidence in Evans had nothing whatsoever to do with attacking the complainant’s credibility. Secondly, the authors seem unaware that section 41 already has that exact prohibition in place:
(4)For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
Which rather makes (1A) otiose.
But what are the restrictions that the judge may apply? Well, s/he:
“may require that the cross examination of a complainant shall not involve
any matter appertaining to their appearance, behaviour or their sexual
history with any unrelated third parties regardless of the nature of the
complainant‘s alleged behaviour either before or subsequent to the
current proceedings”
This is so broad as to defy definition. It covers quite literally “any matter appertaining to behaviour” – not just sexual behaviour. Quite what is meant by “sexual history with any unrelated third parties” remains to be seen, no definition being offered, and a literal reading suggesting that evidence of incest would be admissible. The last line really tops it off – regardless of the nature of the complainant’s alleged behaviour either before or subsequent to the current proceedings – reading as an attempt to ban any question in any context. The incoherence is staggering.
Then we reach the final qualification:
“unless it would be manifestly unjust to treat [those matters] as inadmissible.”
The discretionary nature of this provision renders an “unless” clause utterly pointless, but in any event, it again adds nothing. Because there is already built into the existing subsection (2) of s.41, a requirement that leave should not be given under section 41 unless the court is satisfied “that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.” Much as the Court of Appeal enjoys a spot of sophistry, identifying a meaningful distinction between a decision that is “manifestly unjust” and one that merely “renders unsafe” the verdict would be a head-scratcher even for them.
The only conclusion one can draw, for this to have any meaning, is that the word “may” is an error, and that the author intended this provision as an imperative. In which case what you get is a mandatory restriction on asking the complainant any question on any aspect of behaviour – including lies, evasiveness or inconsistency – which may be designed to undermine their credibility. Faced with a false allegation, you would be prevented from challenging the credibility of your accuser in any way.
Put simply, the drafting of this Bill shows that no understanding of the law, or the principles behind section 41, has been attempted by its creators. It is knee-jerk to the point of hyperextension. Other comments by Ms Saville-Roberts, in which she mangles the reasoning of the Evans ruling, and even goes as far to suggest that section 41 as presently drafted is intended to exclude evidence of a complainant’s mental health, suggest that she, like many before her, has not taken the time to properly study the basics of her subject before rushing to legislate.
And I go into this tortuous detail because it exposes a deeper ignorance of our basic principles of justice, as demonstrated even more starkly in the next clause of the Bill, which seeks to impose a general ban on the police and CPS telling a defendant the name of their accuser, or other witnesses, in cases involving sex or violence, without the leave of a Crown Court judge (a proposal demolished by Nick Diable here). This is not a considered rebalancing of a finely-tuned and delicate ecosystem – it is an aggressive demolition of our common basic rights in the name of Doing Something to correct a problem which the architects don’t even understand.
I have no doubt that Ms Saville-Roberts and her sponsors are motivated by a genuine and noble desire to correct what they perceive to be cruel humiliation visited upon vulnerable complainants. But in so acting, they subscribe to a philosophy in which the court process is reimagined as a way of simply navigating our way smoothly to a conviction, safe in the certainty that if the defendant stands accused, it follows that he is guilty. In this model, it is of course rational that the minimisation of the complainant’s distress is the guiding principle, with the presumed guilty defendant’s interests an afterthought; worse, an inconvenience. A precondition of any reform of section 41 is sober analysis of the competing interests – defendant, complainant and state – and root principles of justice, before so much as a word of a new Bill is committed to paper. Otherwise we end up with Bills like this – well-intentioned, meaningless and potentially very dangerous indeed.