Legal Case Summary
R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45
SEXUAL OFFENCES – RAPE – CONSENT – EVIDENCE OF COMPLAINANT’S SEXUAL HISTORY – RIGHT TO FAIR TRIAL
Facts
The defendant (D) was charged with rape. In his defence he claimed that the complainant had consented to the sexual intercourse which formed the basis of the charge. D sought leave under s.41 of the Youth Justice and Criminal Evidence Act 1999 to adduce evidence and to ask questions relating to an alleged consensual sexual relationship between himself and the complainant over the preceding three weeks. The trial judge refused leave for that evidence, and the Court of Appeal reversed that ruling. On the Crown’s appeal, D argued that s.3 of the Human Rights Act 1998 required the court to construe s.41 in accordance with Art.6 of the European Convention on Human Rights and, if this could not be done, that a declaration of incompatibility must be issued.
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Issue
The House of Lords was asked to determine whether the exclusion of evidence of the complainant’s sexual history under s.41 of the Youth Justice and Criminal Evidence Act 1999 would contravene a defendant’s right to a fair trial under the Human Rights Act 1998 Sch.1 Part I and Art.6 of the ECHR.
Decision/Outcome
In dismissing the Crown’s appeal, the House of Lords held that s.41(3)(c) of the 1999 Act should be construed, where necessary, by having regard to the interpretative obligation under s.3 of the 1998 Act and by giving adequate consideration to the need to protect a complainant from indignity and the possibility of humiliating questioning. Evidence of a complainant’s previous sexual history could be admitted where that evidence, and the questions it raised, were so relevant to the issue of consent that excluding them would endanger the fairness of the trial. The House left the admissibility of the proposed evidence to the trial judge to decide in light of its ruling. On the basis of this approach it was unnecessary for the House to answer the certified question concerning compatibility with Art.6.
