The admission into evidence of a complainant’s previous sexual history is a sensitive and challenging issue both legally and politically. In many cases, such evidence will be neither relevant nor probative and will fall foul of the stringent gateways set out in s.41 Youth Justice and Criminal Evidence Act 1999 (“YJCEA”). Attempts to further narrow these gateways in a bid to improve protections for complainants will likely prove incompatible with a defendant’s right to a fair trial as enshrined in Article 6 of the European Convention on Human Rights.
The Sexual Offences (Amendment) Bill 2017 is a Private Member’s Bill brought to the Commons on 8 February 2017 by Plaid Cymru MP Liz Saville Roberts. It seeks to amend s.41 YJCEA in order to render any evidence of a complainant’s “appearance, behaviour or…sexual history with any unrelated third part[y]” inadmissible, regardless of its relevance to the defendant’s case. The bill appears initially to have gained cross-party support from Conservative, Labour, Liberal Democrat and Scottish National Party MPs.
S.41, as it currently stands, does not differentiate between evidence of sexual behaviour with the defendant and that involving third parties. However, in R v A (No.2)  UKHL 25, Lord Steyn observed that evidence of the complainant’s sexual behaviour with third parties is “almost always irrelevant to the issue whether the complainant consented to sexual intercourse on the occasion alleged in the indictment”. In A (No. 2), their Lordships undertook the challenging task of balancing a defendant’s art. 6 rights and the rights of the complainant, along with the broader public interest of restricting evidence of a complainant’s previous sexual history – an interest which should not be underestimated considering the remarkably low reporting rates for sexual offences, rape in particular.
Ruling that s.41, without interpretation by virtue of art. 6, unduly restricts a defendant’s rights, their Lordships decided that “the test of admissibility is whether the evidence… is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the Convention”.
Legislating to remove judicial discretion in relation to the admission of evidence regarding sexual behaviour with third parties flies in the face of the careful balancing exercise which the House of Lords undertook in A (No.2). The result would be a wholly unsatisfactory situation whereby the statute book would contain legislation consciously in breach of Convention rights – an issue which will lead to potentially unsafe convictions and further litigation in the appellate courts. Considering the exercise undertaken in A (No.2), it is hard to envisage a situation where such litigation would result in anything other than a declaration of incompatibility of the legislation in question, under s.4 Human Rights Act 1998.
Ultimately, it is of the utmost importance that complainants in sexual offences trials do not face unnecessary and potentially humiliating questions about their sexual past. There are conflicting claims as to whether s.41, as interpreted by the ruling in A (No.2), is being misapplied and sexual history evidence is being admitted too readily, as well as being admitted to call the credibility of the complainant into question, in breach of s.41(4) YJCEA. Later this year, the Ministry of Justice is expected to report on its review of the functioning of s.41, which was announced following the public outcry in response to the acquittal of footballer Ched Evans. If it is found that s.41 is being misused, then it not the law per se which is problematic, but rather its application. If any reform is warranted it is best brought about by education, judicial training and amendments to current court practices rather than a change to the statute book.
The criminal justice system should enable victims of sexual offences to feel safe in the knowledge that they will be treated fairly and humanely. Much is being done and can still be done to achieve that end. However, disproportionately limiting the right of a defendant to a fair trial by means of a blanket ban on the admissibility of third party sexual history evidence cannot be justified. S.41 YJCEA provides a strict gateway for admission of evidence; if sexual history evidence is being too readily admitted it is the gatekeeper and not the gate which requires further scrutiny.
 At para 30
 Per Lord Steyn at para 46