The appellant was charged with pre-2003 Act sexual offences. He wished to give evidence that he honestly believed the complainant was consenting to sexual activity with him because, earlier on the same evening, he had observed her behaving in a sexually explicit manner on stage in a nightclub. He sought leave to cross-examine the complainant as to that behaviour. The prosecution argued that the complainant’s earlier behaviour was irrelevant to the issue of his belief; to hold otherwise would mean that ‘every stripper who performed at a club would convey the message that by conducting herself in that way she was indicating that she was consenting to sexual attention by someone such as the appellant, and consent in particular to be touched in a sexual manner by a complete stranger’.
Held: Lord Woolf said that ‘looking purely at the question of relevance, we feel compelled to conclude that as the appellant’s defence was one based on his honest belief, it is difficult to say that what he contended to have taken place on the stage could not be relevant’. Nevertheless, relevance to an issue in the case was not the only matter that the judge had to consider. Even if the appellant could satisfy the requirement of sub-section 3(a), the judge must also consider, under section 41(2)(b), whether a decision to exclude evidence of sexual behaviour might have the result of rendering unsafe a conclusion of the jury on that issue. If it would not, leave would be refused.
Lord Woolf identified the legislative intention behind section 41(2)(b): ‘ . . it was framed in that way because it was the policy of the Act to protect women who make complaints about sexual offences committed against them; it protected them from inappropriate and harassing cross-examination. The experience of the legislature leading to the enactment of the 1999 Act was that unless the cross-examination and the making of accusations against complainants was limited within appropriate bounds, fewer women would come forward to make complaints about sexual assaults on them. The policy was to protect complainants in proceedings in relation to sexual offences alleged to have been committed against them. It seems therefore to us that it can be reasonably said in the context of this case as a whole, albeit that what was alleged to have happened on the stage . . was, strictly speaking, relevant to an issue in the case, the judge would have been entitled to exclude the evidence of what is alleged to have occurred on the stage and cross-examination as to it.’
Lord Woolf CJ, Davis and Field JJ
[2005] EWCA Crim 396
Bailii
Sexual Offences Act 2003 16
Cited by:
Cited – Gjoni v Regina CACD 9-Apr-2014
The defendant appealed against his conviction for rape, raising an issue as to the proper approach to a judgment whether to exclude evidence of sexual behaviour of the complainant relating to a ‘relevant issue in the case’ within the meaning of . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence
Updated: 12 November 2021; Ref: scu.260089