Articles Criminal Defence 20th Apr 2017

When Politicians Meddle…

It is just more than one year since the decision of the Court of Appeal in R v Evans [2016] EWCA Crim 452.  Following the acquittal of Ched Evans at his retrial, the question has been raised afresh as to the circumstances in which a defendant should be allowed to adduce evidence about a complainant’s previous sexual behaviour.

The answer currently lies in Section 41(3) YJCEA 1999. S.41 represented a sea change in the conduct of sexual offences trials.  It was introduced expressly to:

  • protect the privacy of the complainant;
  • prevent defendants from gratuitously “smearing” a complainant; and,
  • prevent the defence from relying on the “twin myths” that a woman’s previous sexual reputation made it more likely that she consented and less likely that she was a credible witness.

So, did R v Evans undo all of that?  Did it, as suggested by Vera Baird QC, take us back 30 years?  The answer in our opinion is a resounding no.  The Court of Appeal’s decision (allowing the appeal and ordering a retrial) was neither ground breaking nor did it create a new precedent.  The Court of Appeal went no further than to apply the existing law.

The defendant gave a detailed account of his sexual activity with the complainant.  It was not consistent with the complainant’s account that she was too drunk to consent.  To convict the defendant the jury was asked to reject this account.  The Court of Appeal said this evidence of similar sexual behaviour was not relevant to the issue of consent.  In supporting the defendant’s account, it may, however, be relevant to the issue of capacity to consent.  The Court of Appeal expressly stated that this was not only a rare case but an unusual one.

The Court of Appeal has twice considered s.41 since the decision in Evans.  In neither case (G [2016] EWCA Crim 1633, C [2016] EWCA Crim 1631) has it seen the need to refer to the decision in Evans.

Why then is Parliament considering two possible amendments to s.41?

  • The Sexual Offences (Amendment) Bill is due to have its second reading in May. The proposed amendment would give the judge the discretion to disallow cross examination on any matter relating to a complainant’s appearance, behaviour and sexual history; 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.
  • Harriet Harman MP has gone even further. In an amendment to the Prison & Courts Bill, she proposes that no evidence should be adduced and no questions asked by or on behalf of the accused about any sexual behaviour of a complainant.

The simple answer is that these amendments are being proposed because Ched Evans is a footballer and was acquitted at his retrial.  The resulting media storm has repeatedly stated that the decision in R v Evans will open the floodgates for sexual behaviour to be admitted in more cases, increase the chances of humiliating complainants and will ultimately discourage victims from coming forward.  Arguably, it is this kind of media hysteria, (which, incidentally, misreported the decision of the Court of Appeal), which will discourage complainants from coming forward.

The view of practitioners is that s.41 has worked well in practice.  The CBA has said that

Section 41, as currently interpreted by the Court of Appeal and trial judges, strikes the right balance: it protects complainants from unfair and gratuitous attacks, while leaving room for questioning in the highly exceptional circumstances when this evidence is needed to avoid the risk of a wrongful conviction.”


Far from being an open door, much less a floodgate, s.41 has very strict controls over the circumstances in which previous sexual behaviour will be admitted, namely:

  • Where it is relevant to a matter in issue other than consent; or
  • Where it is relevant to consent, and relates to the complainant’s behaviour at or about the same time as the allegation; or
  • Where it is relevant to the issue of consent and the complainant’s sexual behaviour is alleged to have been, in any respect, so similar—
    • to any sexual behaviour of the complainant which took place as part of the allegation; or,
    • to any other sexual behaviour of the complainant which took place at or about the same time as the allegation.

and the similarity cannot reasonably be explained as a coincidence.


The current law expressly prohibits admitting such evidence for the purpose of impugning credibility, and the Court of Appeal has emphasised the importance of this provision (G [2016] EWCA Crim 1633).

The proposed ‘knee-jerk’ amendments are all too typical of the approach to legislation of some of our legislature – climbing aboard a misconceived media bandwagon, with no proper comprehension of the current law or how it has been applied.  It is precisely this type of political posturing, giving rise to ill-considered piecemeal legislation, which leads to the creation of bad laws.

Brian O’Neill QC

Nikita McNeill


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