In the aftermath of the acquittal of Ched Evans at his re-trial, on 13 February 2017, Liz Truss announced that the Government would review the operation of Section 41 of the Youth Justice and Criminal Evidence Act 1999 (“Section 41”), which provides for a qualified prohibition on the admission of evidence relating to a complainants sexual behaviour.

In the meantime, and before the Government has announced the outcome of its review, or even any details as to what form the review may take, there have been two proposed legislative amendments to Section 41.

The first is a private members Bill which has been tabled by Liz Saville Roberts MP. This was reported to contain a provision amounting to a “rape shield.” However, the actual wording of the current draft Bill seems only to contain a further discretionary hurdle for a judge to grant leave for the admission of such evidence. It is therefore unclear as to the nature and purpose of this amendment, given the rigorous initial hurdles to the admission of such evidence that are contained in Section 41. The Bill is due for a second reading on 12 May 2017, but this proposed amendment is virtually meaningless and is unlikely to withstand the scrutiny of the legislature.

The second proposed amendment to Section 41 is contained in a proposed amendment to the Prisons and Courts Bill currently before the House of Commons, by Harriet Harman MP. The Bill is shortly due to enter the Committee Stage. The amendment proposed by Harriet Harman would remove the four restrictive gateways which, in rare circumstances, permit a judge to grant leave to adduce evidence of a Complainant’s sexual behaviour. The member’s explanatory statement states:

"This new clause would ensure that no evidence can be adduced and no questions may be asked in cross-examination by or on behalf of the accused about any sexual behaviour of a complainant.”

The purpose of this amendment is clear – to transform Section 41 from a qualified prohibition on the admission of such evidence to an absolute prohibition. This proposed amendment must arise from a belief that the sexual behaviour of a Complainant can never hold evidential value in rape trials.

However, in cases where the Defendant asserts a defence of consent, or reasonable belief in consent, a Court is required to assess the Defendant’s reasonable belief in consent by reference to the Defendant’s subjective belief and the objective factors which exist (which may support or detract from such a belief). In the Evans case, where the Defendant asserted that the Complainant actively took the lead and two other men independently provided very similar evidence of the Complainant having done and said similar things to indicate her consent, it can clearly be seen that this is cogent, objective evidence which may support the reasonableness of the Defendant’s belief in consent. Therefore, to assert that such evidence holds no evidential value is misguided. Such a blinkered view of the value of this evidence demonstrates a misunderstanding of the statutory offence of rape and how the defence of consent operates.

More to the point, the potential value of this evidence, in rare and exceptional cases has been recognised by the House of Lords. Lord Steyn in R v A (No.2) warned that:

To exclude such material creates the risk of disembodying the case before the jury. It also increases the danger of miscarriages of justice. These considerations raise the spectre of the possible need for a declaration of incompatibility in respect of Section 41 under section 4 of the Human Rights Act 1998.”

The proposed amendment, if passed, would in rare cases preclude a Defendant a fair trial and amount to a breach of Article 6 of the European Convention on Human Rights. The House of Commons should await the Government’s review of the operation of Section 41. It is hoped that such a review will be based on evidence, rather than hyperbole.