18581

Question 1

In Woolmington v DPP (1935)1, Viscount Sankey LC established the Golden Thread

Rule, known as presumption of innocence (POI). The legal principle in this case quoted by
Viscount is ‘Throughout the web of English Criminal Law, one golden thread is always to be
seen that, it is the duty of the prosecution to prove the prisoner’s guilt subject … the
defence of insanity and also to any statutory exception.2’

Burden of Proof

Two types of burden must be distinguished from one another. Legal burden is for the
prosecution to establish the elements of the crime beyond a reasonable doubt 3. In general
rules, the prosecution has the duty to prove:

i) the accused committed the actus reus of the offence4

ii) With the required mens rea for that specific offence5
iii) Disprove any defence (R v Lobell (1957)6)

Evidential burden is rather an obligation to present sufficient evidence to raise

defences for the court to consider 7. In other words, the party has to produce sufficient facts
into court to convince the judge of the existence of it8.

Golden Thread Rule

In Woolmington v DPP, the defendant’s gun went off accidentally, killing the victim.
The burden was up to Woolmington to prove he had not intended to kill her. Viscount
declared it is the duty of the prosecution to prove the accused’s guilt, meaning EB will be
imposed on the defendant.

1
Woolmington v DPP, [1935] AC 462, [1935] All ER Rep 1, 153 LT 232
2
Ibid (1)
3
“Proving the Offence” (Proving the offence - Court Stage - Enforcement Guide (England & Wales)
<https://www.hse.gov.uk/enforce/enforcementguide/court/rules-prove.htm> accessed October 30,
2022
4
“Actus Reus vs. Mens Rea vs. Strict Liability” (Shory LawApril 8, 2022) <https://shorylaw.com/actus-reus-vs-
mens-rea-vs-strict-liability/> accessed November 5, 2022
5
Ibid (5)
6
R v Lobell, [1957] 1 QB 547, [1957] 1 All ER 734, [1957] 2 WLR 524
7
Ibid (4)
8
Arta Bilali Zendeli, “CONCEPTUAL DEFINITION OF THE BURDEN OF PROOF AND OTHER RELATED TERMS”
<http://pf.ukim.edu.mk/wp-content/uploads/2020/05/4.-Arta-Bilali-Zendeli.pdf>
18581

The Golden Thread Rule is the self-evident truth that people have a right not to be
convicted of offences they have not committed 9. The principle instilled in this rule has
affirmed in Article (6) of European Convention on Human Rights (ECHR) 10, which states
everyone charged with a criminal offence shall be presumed innocent until proven guilty.
The result of a wrongful conviction is a significantly greater evil than wrongful acquittal 11.

The doctrine of P.O.I is to protect the dignity of the individual and their right to
privacy and liberty. Viscount emphasised while P.O.I is fundamental, it is not an absolute
right immune from derogation12.

Exceptions to the presumption:

Lord Sankey had expressed that the two circumstances will activate the exception 13.
P.O.I will not be applied and legal burden will be imposed on the defendant to ‘prove’ the
defence on standard balance of probabilities.

1) Insanity

Insanity is the only common law exception to the principle that the prosecution
bears the legal burden of proof. To raise insanity as a defence, the accused will bear the
legal burden of proof as illustrated in R v Smith (1910)14. According to s1(1) and 6(1) of the
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 15, expert opinion testimony
in support of the defence from two or more registered medical practitioners is required for
the burden of proof to be discharged.

9
The Presumption Of Innocence | Fair Trials | Fairness, Equality, Justice' (Fair Trials, 2022)
<https://www.fairtrials.org/the-right-to-a-fair-trial/the-presumption-of-innocence/#:~:text=If%20there%20is
%20'reasonable%20doubt,guilty%20according%20to%20the%20law.> accessed 10 October 2022.
10
Charanjit Singh Landa, and Mohamed Ramjohn “2.2 Incidence of the Legal Burden of Proof’ ‘Unlocking
Evidence’ 2nd edition Routledge
11
Victor Tadros and Stephen Tierney, 'The Presumption Of Innocence And The Human Rights Act' (2004) 67
Modern Law Review.
12
Raymond Emson (5th edn Palgrave Macmillan Law Masters 2010)
13
ShuoLum Chun , 'The Presumption of Innocence is like a Golden Thread in the Criminal Justice
System' (@QUBSLJ, 15th February 2017) <https://blogs.qub.ac.uk/studentlawjournal/2017/02/15/the-
presumption-of-innocence-is-like-a-golden-thread-in-the-criminal-justice-system/> accessed 29 October 2022
14
R v Smith, [2001] EWCA Crim 2134, [2001] All ER (D) 35 (Sep)
15
“Criminal Procedure (Insanity and Unfitness to Plead) Act 1991” (Legislation.gov.ukJune 27, 1991)
https://www.legislation.gov.uk/ukpga/1991/25/contents accessed October 30, 2022
18581

The court’s decision in the case of M’Naughten (1843)16 states that there is really no
good reason in principle why the accused should bear a legal burden of proving insanity. In
short, the defendant has to bear a legal burden to prove insanity and burden of proof.

2) Statutory reversals

The statutory exceptions mentioned by Lord Sankey in Woolmington includes both

express and implied statutory exceptions. Parliament may expressly or impliedly choose to
place the burden of proof on defendant.

Statutory offences may expressly provide the accused by using the wording of the
statute with a defence which he must prove the balance of probabilities and expressly
impose a legal burden on the accused to prove a defence 17. For example, provision such as
s28(2) of Misuse of Drugs Act 1971, provides that the defendant to prove that he had no
knowledge of the substance in his possession.

Implied reversal means the enactment is up to judges to decide 18 on how to impose

legal burden on the defendant. For example, the offence stated under s140 Highways Act
1959 is that it is an offence to deposit anything on the highway without lawful authorities.
Parliament is silent as to the incidence of legal burden via a defence and judges are
expected to make decisions via tools of interpretation19 .

The impact of HRA

Under ECHR Article 6(2), it is stated that everyone charged with a criminal offence
shall be presumed innocent until proven guilty20. After the implementation of the HRA 1988,
the courts have been required to consider whether the imposition of a burden of proof on
the defendant at its incompatible with the right to a fair trial under Art (6).

16
M'Naghten's Case (1843) 8 Eng. Rep. 718, 722.
17
Gavin Dingwall, “Statutory Exceptions, Burdens of Proof and the Human Rights Act 1998” (2002) 65 Modern
Law Review 450
18
Francis Bennion, “Statutory Exceptions: A Third Knot in the Golden Thread?”
19
David Hamer, "The Presumption of Innocence and Reverse Burdens: A Balancing Act (2007) 66 The
Cambridge Law Journal 142
20
Participation E, “Human Rights Act 1998” (Legislation.gov.uk November 9, 1998)
<https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/5> accessed November 6, 2022
18581

Section3(1) of the Human Rights Act 1998 (HRA) reads as follows: ‘So far as it is
possible to do so, primary and subordinate legislation must be read and given effect in a
way which is compatible with the Convention rights. 21’ The court have the discretion to
interpret the wordings of the statutes in cases that infringed the Convention rights. Due to
the broad nature of interpretation brought by section3, it gives courts the power to insist
defendants not be inflicted with BOP in any case where the burden is incompatible with
Article 6(2)22.

Section4 of the HRA gives the higher courts the authority to declare a statute to be
incompatible with the Convention23 if it cannot be understood in a way that is compatible
with the Convention24. These methods of interpretation of statutes have been an important
aspect of the implementation of HRA 1988 in order to ensure compatibility with ECHR by
the judiciary25.

R v Lambert (2001)26 is a classic case used in judicial discussion of the reverse burden
of proof in drugs possessions. The issue that was raised in this landmark case was whether
s5(3) of the Misuse of Drugs Act 1971 compromised the presumption of innocence and
whether s3 HRA 1998 was applicable.

His trial took place before the Human Rights Act 1998 came into force. Lambert was
convicted of possession of a controlled drug (cocaine), the crime fell under section5 of the
Misuse of Drugs Act 1971 which states that it is an offence for a person to have a controlled
drug in his possession with the intent to supply. The defence he raised was based on
section28(3)(b)(i), asserting that he had no knowledge or reason of belief that he was in
possession of a controlled drug27. However, Lambert was sentenced to 7 years in prison
because he had failed to prove his defence.

21
Jan van Zyl Smit, “HRA Section 3 and the Limits of Purposive Interpretation”
22
Alan Clark Stumer, The Presumption of Innocence Evidential and Human Rights Perspectives (Hart 2010)
23
“How the Human Rights Act Works” (Liberty February 17, 2020)
<https://www.libertyhumanrights.org.uk/your-rights/the-human-rights-act/how-the-human-rights-act-
works/#:~:text=Section%203%20of%20the%20Human%20Rights%20Act%20requires%20anyone
%20interpreting,Rights%20Act%20came%20into%20force>accessed November 6, 2022
24
Ibid (23)
25
Chris Taylor, “Burden and Standard of Proof,” Evidence (5th edn LawExpress)
26
R v Lambert, [2001] UKHL 37, [2002] 2 AC 545, [2001] 3 All ER 577, [2001] 3 WLR 206, [2002] 1 LRC 584,
[2001] 2 Cr App Rep 511, (2001) Times, 6 July, [2001] All ER (D) 69 (Jul)
27
Ibid (13)
18581

Before HRA 1988 was introduced, prosecution only had to prove that the accused
had possession of an item and knew of its existence and the fact that the item was a
controlled drug. There was no obligation to prove that the accused knew the item was a
controlled drug. It was for the accused to prove on a balance of probabilities that he had no
reason that the item was a controlled drug. Lambert appealed to House of Lords for the
purposes of s28(2) and (3) of the 1971 Act, the defendant argued there was an infringement
of their rights under ECHR. This appeal was dismissed as it was held that the defendant
could not rely on the Convention right because HRA 1998 was not in force.

Despite the verdict, the courts had used this opportunity to express their views to
answer the question whether the defences mentioned were compatible with Art(6) ECHR as
the obiter was P.O.I was not absolute and can be modified. By virtue of Salabiaku v France
(1988)28, as long as the provisions are confined ‘within reasonable limits which take account
the importance of what is at stake and maintain the height of the defence’, it can be
reconciled with Article6(2) HRA29.

Cardinal Principles

According to Ian Dennis30, there are six principles to test if the legal burden on the
defendant is justified when using test of proportionality.

1) Ease of Proof

The courts would generally impose legal burden on the defendant in situations if a
defence is within the defendant’s knowledge. Charges against the defendant are imposed
on them since it will be more difficult for the prosecution to adduce them. Therefore,
imposing legal burden on the defendant is justified.

In Sheldrake v DPP(2003)31, the defence under s5(2)Road Traffic Act 1988 states that
it is for the defendant to prove that he had no likelihood of driving the vehicle. HOL rejected
the idea of imposing no more than EB. Lord Bingham said, imposing LB on the defendant

28
Salabiaku v France (Application 10589/83), [1988] ECHR 10589/83
29
“Salabiaku v France: ECHR 7 Oct 1988” (swarb.co.uk August 24, 2021) <https://swarb.co.uk/salabiaku-v-
france-echr-7-oct-1988> accessed November 7, 2022
30
Ian Dennis, The Law of Evidence (6th edn Sweet Maxwell (GB) 2017)
31
Sheldrake v DPP, [2003] EWHC 273 (Admin), [2004] QB 487, [2003] 2 All ER 497, [2003] 2 WLR 1629, [2003] 2
Cr App Rep 206, (2003) Times, 25 February, [2003] All ER (D) 335 (Feb)
18581

was justifiable as it was ‘a matter so closely conditioned by his own knowledge and mind at
the material time’32.

2) Maximum penalty

One of the functions is to provide indicators of gradings of seriousness of offences.

When an offence result in a greater penalty, the more reluctant the courts will be to impose
a reversal as the weight placed on the presumption of innocence is greater.

The court’s decision AG’s reference (no.1 of 2004) held that the sentences (10 years)
were too severe to constitute a legal burden on the defendant and refused to uphold the
reverse onus under s.11(2) of Terrorism Act 2000. However, in Johnstone (2003)33, despite
also the defendant having to face a 10-year maximum sentence, the court held that
imposing LB was justifiable. These cases are examples to show the maximum penalties
merely referred to as a guideline due to its uncertain nature.

3) Judicial Deference

This explores the point of how far the courts should defer to the judgement of
Parliament. In Kebilene34, Lord Hope said it will be ‘appropriate for the courts to recognize
that there is an area of judgment within which the judiciary will defer’. The judges should
adhere and uphold the reversal to not file the Parliament’s intention. With this, the
implementation of LB on the defendant is justified.

In Johnstone(2003), HOL said judiciary should reach a different conclusion from

Parliament son the incidence of the BOP ‘only when it is apparent that the legislature has
attached insufficient importance to the fundamental right if an individual to be presumed
innocent until proved guilty.

4) Classification of offences

The two classifications of offense are mala in se and mala prohibita. Mala in se
applies on crimes that most individuals would agree are not inherently immoral, but are still

32
Ibid (13)
33
R v Johnstone [2003] 1 WLR 1736
34
R v DPP, ex p Kebilene , [2000] 2 AC 326, [1999] 4 All ER 801, [1999] 3 WLR 175, [2000] 3 LRC 377, [2000] 1 Cr
App Rep 275, (1999) Times, 31 March, [1999] Lexis Citation 2384, [1999] All ER (D) 360
18581

actions that still needs to be punished 35. Hence, the courts are reluctant to impose legal
burden on the defendants. Mala prohibita applies on actions that are not strictly prohibited
and allowed if complied with certain regulations.

In Davies v Health and Safety Executive36, an employer was charged under s40
Health and Safety Work Act 1974. This section imposes a legal burden on the employer to
prove that it had not been reasonably impracticable to do more than he has done to ensure
employee’s health and safety. This offence was classified as mala prohibita as there was
minimal moral disgrace. Thus, imposing legal burden on the defendant is justified.

5) Elements of offence and defence

According to Lord Hope in Lambert, shifting the burden of proof from the state to
the accused to establish his own defence would be admissible when there is a distinction
between the elements of the offence and the defence 37. In AG of Hong Kong v Lee Kwong-
Kut(1993)38, Lord Woolf said a reversal of burden is more justifiable when the prosecution is
required to establish the essential elements.

6) P.O.I

As mentioned above, P.O.I discourages judges to impose legal burden on defendant

and favour EB instead. The doctrine is designed to minimise the risk of misjudgement in
criminal trials.

In Attorney General’s reference (no.4 of 2002), the defendant was charged under
section1 of the Terrorism Act 2000 which is being a member or professing to be a member
of prescribed organisation. Under s11(2), it is a defence for the defendant to prove that the
organisation is not prescribed and he did not take part of the activities. It was held that this
defence is incompatible with Art(6) as the defence was prove due to the lack of documents

35
LaMance K, “Mala in Se Crimes” (LegalMatch Law Library April 6, 2022) <https://www.legalmatch.com/law-
library/article/mala-in-se-crimes.html#:~:text=The%20phrase%20%E2%80%9Cmala%20in%20se,public
%20intoxication%2C%20and%20parking%20violations> accessed November 7, 2022
36
Davies v Health and Safety Executive, [2002] EWCA Crim 2949, [2003] IRLR 170, [2003] ICR 586, (2002)
Times, 27 December, [2002] All ER (D) 275 (Dec)
37
Ibid (14)
38
A-G of Hong Kong v Kwong-kut, A-G of Hong Kong v Chak-man, [1993] AC 951, [1993] 3 All ER 939, [1993] 3
WLR 329, [1993] 2 LRC 259
18581

and witnesses. There was a high risk of wrongful conviction hence the court imposed only
EB on the defendant.

Conclusion

Undeniably, each elements have its flaws and should not be overlooked. However,
the six elements put forth by Professor Ian Dennis appear to be more than sufficient to
assist defendants in reducing the BOP and gives judges a wider scope and perspectives on
how to handle cases that breach art (6) ECHR. In the writer’s opinion, the principles should
be served not more than guidelines to assist the courts. It is ultimately up to the court’s
discretion to obey it in determining the right approach to serve justice.

(2103 words)
18581

Bibliography

Cases

Attorney General’s reference (no.4 of 2002)

Bernard v France

Davies v Health and Safety Executive

Johnstone (2003)

Kebilene

M’Naughten (1843)

R v Lambert (2001)

R v Lobell (1951)

R v Oakes (1986)

R v Smith (1910)

Salabiaku v France (1988)

Sheldrake v DPP(2003)

State v Coetzee (1977)

Woolmington v DPP

Acts

Criminal Procedure (Insanity and Unfitness to Plead) Act 1991

European Convention on Human Rights (ECHR)

Health and Safety Work Act 1974

Highways Act 1959

Misuse of Drugs Act 1971

Road Traffic Act 1988

Terrorism Act 2000

Articles

Tadros V, and Tierney S, 'The Presumption Of Innocence And The Human Rights Act' (2004) 67
Modern Law Review

Bilali Zendeli A, “CONCEPTUAL DEFINITION OF THE BURDEN OF PROOF AND OTHER RELATED
TERMS” <http://pf.ukim.edu.mk/wp-content/uploads/2020/05/4.-Arta-Bilali-Zendeli.pdf>

Hamer D, "The Presumption of Innocence and Reverse Burdens : A Balancing Act (2007) 66 The
Cambruidge Law Journal 142

Taylor C, “Burden and Standard of Proof,” Evidence (5th edn LawExpress)

18581

Van Zyl Smit J, “HRA Section 3 and the Limits of Purposive Interpretation”

Books

Aistė M, Presumption of Innocence in EU Anti-Cartel Enforcement (Brill | Nijhoff 20 Nov 2018) 25-75

Bennion F, “Statutory Exceptions: A Third Knot in the Golden Thread?”

Dennis I, The Law of Evidence (6th edn Sweet &amp; Maxwell (GB) 2017)

Dingwall G, “Statutory Exceptions, Burdens of Proof and the Human Rights Act 1998” (2002) 65
Modern Law Review 450

Emson R (5th edn Palgrave Macmillan Law Masters 2010)

Landa CS., & Ramjohn, M. (n.d.). Unlocking Evidence (2nd ed.). Routledge, 2013

Stumer AC, The Presumption of Innocence Evidential and Human Rights Perspectives (Hart 2010)

Websites

“Actus Reus vs. Mens Rea vs. Strict Liability” (Shory LawApril 8, 2022) <https://shorylaw.com/actus-
reus-vs-mens-rea-vs-strict-liability/> accessed November 5, 2022

'Burden Of Proof & Balance Of Probabilities In Civil Litigation: Law Simplified' (Hallellis.co.uk, 2022)
<https://hallellis.co.uk/burden-proof-balance-probabilities/> accessed 10 October 2022.

'Burden Of Proof | Practical Law' (Practical Law, 2022)

<https://uk.practicallaw.thomsonreuters.com/8-502-6326?
transitionType=Default&contextData=(sc.Default)> accessed 10 October 2022

“Regina v Lambert: HL 5 Jul 2001” (swarb.co.ukNovember 9, 2021) <https://swarb.co.uk/regina-v-

lambert-hl-5-jul-2001/> accessed November 6, 2022

'The Presumption Of Innocence | Fair Trials | Fairness, Equality, Justice' (Fair Trials, 2022)
<https://www.fairtrials.org/the-right-to-a-fair-trial/the-presumption-of-innocence/#:~:text=If
%20there%20is%20'reasonable%20doubt,guilty%20according%20to%20the%20law.> accessed 10
October 2022

'The Presumption of Innocence is like a Golden Thread in the Criminal Justice System' (@QUBSLJ,
15th February 2017) <https://blogs.qub.ac.uk/studentlawjournal/2017/02/15/the-presumption-of-
innocence-is-like-a-golden-thread-in-the-criminal-justice-system/> accessed 29 October 2022

“Proving the Offence” (Proving the offence - Court Stage - Enforcement Guide (England &amp;
Wales) <https://www.hse.gov.uk/enforce/enforcementguide/court/rules-prove.htm> accessed
October 30, 2022

Participation E, “Human Rights Act 1998” (Legislation.gov.uk November 9, 1998)

<https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/5 > accessed November
6, 2022

Participation E, “Criminal Procedure (Insanity and Unfitness to Plead) Act 1991”

(Legislation.gov.ukJune 27, 1991) <https://www.legislation.gov.uk/ukpga/1991/25/contents>
accessed October 30, 202
18581

“Salabiaku v France: ECHR 7 Oct 1988” (swarb.co.uk August 24, 2021)

<https://swarb.co.uk/salabiaku-v-france-echr-7-oct-1988> accessed November 7, 2022

LaMance K, “Mala in Se Crimes” (LegalMatch Law LibraryApril 6, 2022)

<https://www.legalmatch.com/law-library/article/mala-in-se-crimes.html#:~:text=The%20phrase
%20%E2%80%9Cmala%20in%20se,public%20intoxication%2C%20and%20parking%20violations>
accessed November 7, 2022
18581

Question 2

Compared to other types of crimes, sexual offences (rape, sexual assault, etc.) create
the most serious credibility issues. This is due to the fact that these offences frequently take
place without the presence of other witnesses, hence the complainant's testimony may not
be well-supported by independent evidence. The objective of this essay is to dissect the
statement as to whether evidence of a rape complainant’s sexual history with third parties
is rarely, if ever, admissible as relevant to consent.

Lord Coleridge presumedly thought in 1887 that he had resolved the law in regards
of the relevancy of sexual history evidence when it came to third parties. In R v Riley
(1887)39, Lord Coleridge stated that it is irrelevant to show evidence that the victim
previously had connection with B and C while trying to establish whether or not A has made
a criminal rape attempt against her 40. He continued that such evidence ought to be
disregarded as it is not evidence ‘which goes directly to the point of issue at the trial’ 41. He
also noted that if such evidence were admitted, an unchaste woman would be left without
any protection from assaults of this sort.

Unfortunately, this precedent did not reflect in the development of English Law.
After many calls for reform due to the floodgate of sexual history evidence being
admissable, the Youth Justice and Criminal Evidence Act 1989 (YJCEA 1989) was adopted. A
narrow set of exemptions to a general principle of exclusion was introduced to replace the
discretionary regime provided by the Sexual Offences (Amendment) Act 1976. Following
closely after the 1999 legislation was passed, an aspect of judicial discretion was once again
introduced by the House of Lords ruling in R v. A (2001)42.

The most controversial type of evidence is called ‘third party evidence’ which is
about sexual activity with people other than the accused. It is based on the notion that prior
consent serves as evidence of consent on the occurrence in question. Such a justification

39
R v Riley (1887) 18 QBD 481
40
Dev.login, “Blog: A Fine Mess - Section 41 of the Youth Justice and Criminal Evidence Act 1999 - Mountford
Chambers - London Barristers Chambers” (Mountford Chambers November 8, 2021)
<https://www.mountfordchambers.com/blog-a-fine-mess-section-41-of-the-youth-justice-and-criminal-
evidence-act-1999> accessed November 21, 2022
41
Ibid (1)
42
R v A, [2001] UKHL 25, [2002] 1 AC 45, [2001] 3 All ER 1, [2001] 2 WLR 1546, [2002] 1 LRC 347, [2001] 2 Cr
App Rep 351, [2001] All ER (D) 222 (May)
18581

fundamentally undermines the idea that consent is situation- and person-specific. It makes
the assumption that consent can be inferred from prior consent, specifically with regard to
sexual activity with the accused.

‘As a matter of common sense, a prior sexual relationship between the complainant
and the accused may, depending on the circumstances, be relevant to the issue of consent.
It is a species of prospectant evidence which may throw light on the complainant’s state of
mind.’ This statement was given by Lord Steyn in the case of R v A, suggesting that a prior
relationship between a complainant and an accused may sometimes be logically relevant to
what decision was made on a particular occasion.

Di Birch supported Lord Steyn’s view, claiming that the ‘complainant’s prior sexual
behaviour with A makes her non-consent highly unlikely 43. This not only implies the
relevance of prior consent but also asserts that it increases the likelihood of consent.

i) Infer consent

Such an approach focuses on the misconception that a woman's sexual past

indicates whether she would have consented to the conduct in question 44 and the fact that
consent is given anew every time is not acknowledged in sufficient detail. For example, it
fails to adequately recognise the variety of sexual relationship circumstances and
conditions, such as coercive or abusive partnerships, by considering consent to be more
likely.

Furthermore, it fails to take into account the likelihood that the accused may likely
wind up being the one with whom the complainant is least likely to consent in the future as
a result of their previous sexual activity. In fact, the once-held belief that a person will be
more likely to consent to sexual activity if they have done it in the past is not all that distinct
from the legal position of implied consent during marriage.

ii) Attack credibility

43
D Birch, “Rethinking Sexual History Evidence: Proposal for Fairer Trials” [2002] Criminal Law Review 531
(July) at 542
44
“The Problematic Use of Past Sexual History as Evidence in Rape Trials” (STARS February 4, 2020)
<https://www.starsdorset.org/blog/the-problematic-use-of-past-sexual-history-as-evidence-in-rape-trials>
accessed November 24, 2022
18581

It is claimed that it is unethical for the prosecution to use a complaint's prior sexual
history as evidence. The introduction of such material is frequently utilised as a strategy to
undermine the complainant's credibility before the jury. A woman's refusal to consent to a
particular sexual activity should be taken seriously regardless on how regularly she consents
to sexual activity. This evidence contributes to shifting the focus of the trial, legal and moral
blame from the defendant to the complainant.

By virtue of R v Darrach (2000)45, the court in Canada have ruled that prior sexual
history, such as agreeing in a previous relationship has no influence on the issue of consent
or the credibility of the complainant. Justice Gonthier held that the accused is not entitled
to procedures that would ‘distort the truth-seeking function of a trial by permitting
irrelevant and prejudicial material at trial’ 46. Therefore, whether or not the victim
consented on this particular occasion is irrelevant to whether they had previously engaged
similar sexual behaviour with different people. Granted that a partner has the right to say
no ‘no’ at any time, common sense suggest prior consent does not equate to consent now 47.

This rationale was supported by Lord Hutton in R v A (2001). He stated that ‘sexual
history of the complainant may distort the course of the trial and divert the jury from the
issue which they have to determine’. In order to maintain the integrity of the trial,
unnecessary or detrimental evidence—especially evidence that could deceive the jury or
divert it from its work at hand must be omitted.

Justifying Restrictions on Sexual History Evidence

a) Protecting witnesses from unnecessary humiliation and distress

According to surveys48, nearly three out of four cases in UK courts, alleged sexual
assault or rape victims are asked questions regarding their past sexual behaviour. Only a
quarter said that none of the cases they attended included questioning the complainant
about previous sexual history.

45
R v Darrach, (2000) 11 BHRC 157
46
Ibid (7)
47
Zechner K, “Credibility and Reliability in Cases of Sexual Assault” (Vesta SIT August 9, 2021)
<https://www.vestasit.com/credibility-and-reliability-in-cases-of-sexual-assault> accessed November 24, 2022
48
Crockett M, “UK Rape Victims Are Still Having Their Sexual Histories Questioned in Court” (StylistSeptember
26, 2017) <https://www.stylist.co.uk/life/rape-victims-questioned-about-sexual-history-past-in-court-legal-
report/72813> accessed November 25, 2022
18581

Lawyers often patronised complainants for being unable to accurately describe their
anatomy and utilised complex terminology that many of the complainants, who were
frequently young didn't grasp49. These are typical strategies used in rape trials that turned
into bullying, tormenting, and humiliation of the victims because the questions frequently
went beyond what was required as an attempt to undermine the victim’s testimony. Victims
used phrases such as ‘judicial rape’ to describe their experience in court 50 when cross-
examined as they had to endure evidence from complainants of their adverse treatment in
court.

The necessity to lessen the humiliating and upsetting nature of cross-examination in

rape trials as well as protecting a complainant's right to privacy justifies restrictions on
sexual history evidence by limiting evidence and cross-examination to only highly probative
information.

b) Securing Best Evidence

Most rape victims are fairly young women, and they frequently are defenceless.
Society expects them to talk about rape in an unfamiliar setting, and lawyers either tell them
to speak up or talk down to them. It is not surprising that most rape victims found that they
were highly anxious before and during court during the evidence-passing process.

The dread and reality of needless cross-examination on unpleasant evidence will

prevent a complainant from giving evidence in ways that are most appropriate for the court
and jury, while some anxiety will unavoidably be evident. Therefore, limits on sexual history
evidence and related enforcement mechanisms can aid in obtaining the best evidence from
complainants, which is important for the trial process and can ensure a favourable effect on
trial outcomes.

c) Encouraging Police Reports and Supporting Prosecutions

Only 820 alleged rapists were charged in England and Wales in the year leading up to
September 2021, indicating a prosecution rate for rape of just 1.3% despite 63,136 claims of
49
Johnston K, “Women Complain of Rape. in Court, They're Still Asked about Their Clothing, Flirting” (NZ
HeraldSeptember 22, 2020)<https://www.nzherald.co.nz/nz/rape-victims-still-face-brutal-and-humiliating-
cross-examination-at-trial-new-study-reveals/TSFZ5VUL7JNHXM3YNPVTJE75NI/> accessed November 25, 2022
50
“Prosecuting Sexual Assault: 'Raped All over Again'” (The GuardianApril 13, 2013)
<https://www.theguardian.com/society/2013/apr/13/rape-sexual-assault-frances-andrade-court> accessed
November 25, 2022
18581

rape being reported to police there 51. Some victims lack the finances or status required to
access the civil courts. Besides that, police have much more legal authority to collect
evidence than victims do52.

These statistics imposed the fear of a complainant being confronted with evidence
relating to sex with other men is, and has always been, a huge deterrent to reporting rape.
Thus, effective constraints on sexual history evidence are essential for both enticing victims
to contact the police and for maintaining prosecution support after they do.

Section 41 and Restrictions on the Use of Sexual History Evidence

Section 41 (1) of the YJCEA 1999 provides that except with leave of the court, no
evidence may be adduced at trial and no question may be asked in cross–examination, by or
on behalf on the defendant any ‘sexual behaviour’ of the complainant. This section
examines the exceptions to the general exclusion of the sexual history evidence.

i) Similarity Evidence, Third Parties and Inferring Consent

The Court of Appeal’s decision in R v Evans (2016)53 has perked interest in reforming
section 41 of the YJCEA 1999 54. This provision(s41(3)(c)) permits leave to be given where the
evidence relates to an issue of consent and the sexual behaviour of the complainant as part
of the event, the subject matter of the charge.

Lord Clyde’s view of situational similarities do not have to be unusual in order for the
evidence to come within s.43(3)(c) was applied in Evans55. After the defendant was
convicted of rape, two other men came forward and explained the victim had behaved in a
similar fashion with them during intercourse56. The similar elements include her directing
them to adopt a particular position (doggie style) and used specific words of encouragement
(fuck me harder).

51
“Rape Victims Failed by UK Criminal Courts Are Being Forced to Seek Justice Elsewhere | Charlotte
Proudman” (The Guardian April 19, 2022) <https://www.theguardian.com/commentisfree/2022/apr/19/uk-
courts-rape-civil-prosecution-rates> accessed November 25, 2022
52
Ibid (10)
53
R v Evans [2016] EWCA Crim 452
54
Findley S., “Bringing the Background to the Fore in Sexual History Evidence” Core
55
R v Evans [2016] EWCA Crim 452
56
Ian Dennis, The Law of Evidence (6th edn Sweet Maxwell (GB) 2017)
18581

The evidence was held to be admissible. COA’s explanation was that the detailed
similarities of her behaviour could not be reasonably be explained as a coincidence. It was
also stated that this was a rare case where it was appropriate to examine the complainant’s
sexual behaviour with a third party.

ii) ‘Not an issue of consent’, Reasonable Belief

The issue of consent as defined in s42(1)(b) is ‘any issue whether the complainant in
fact consented to the conduct constituting the offence with which the accused is charged’. Is
it really reasonable to assume that a complainant has given their consent for sexual
behaviour with another person?

This question was raised in the case of Evans. It is particularly difficult to see how any
knowledge of sexual conduct with third parties should be relevant to a defendant's belief in
consent if consent is regarded as being person-specific. Could the testimony of the other
two men cast reasonable doubt on the claim that Evans lacked a reasonable confidence in
X's consent?

Research has shown that section 41 has been constantly ignored 57 and the common
criticism among barristers and judges about this case was that the belief in consent
exception on the basis was ‘too wide’ and illogical’.

iii) Sexual Activity ‘At or About the Same Time’ as the Alleged Rape

In R v A, the defendant wanted to rely on s41(3)(b), by submitting the relationship

had continued for a three-week period prior before the rape. All five members held that this
fell outside the scope of the provision. Lord Hope stated that the phrase ‘at or about the
same’ was expected to be interpreted no more widely than 24 hours before or after the
offence58.

Reforming the Law

R v Evans turned a free pass for the defence to look through the complainant's
sexual past in search of "similarities." It inevitably places more emphasis on the

57
“UK Rape Complainants 'Face Unfair Questions about Sexual History'” (The Guardian January 29, 2018)
<https://www.theguardian.com/society/2018/jan/29/uk-rape-complainants-unfair-questions-sexual-history>
accessed November 26, 2022
58
Ibid (18)
18581

complainant's lifestyle and character than it does on the defendant's behaviour during the
alleged offence. This shows a necessary reform to amend s42(1)(b) that belief in consent no
longer comes within ‘not an issue’ of consent, particularly in relation to third parties.

Another option is to make the current exception stronger by only allowing evidence
of behaviour that is undeniably uncommon and, as such, highly unlikely to be coincidence.
In order to show a pattern of consistent and recognisable behaviour, there should be a large
number of incidents, which is more than one or two that fit the criteria.

Conclusion

The Heilborn Report stated that third-party sexual history evidence "is of no
significance so far as credibility is concerned and is only rarely likely to be relevant to issues
directly before the jury" and urging that it ought not to be submitted. Such overarching,
stereotypical, and unjustified prejudices have no business being in our legal system and
research shows this led to an extremely low rate of rape case convictions. The writer
suggests that third party sexual history should not be admissible as relevant to consent as it
just promotes stereotypes that violate women's fundamental rights and portray them as
being sexually available have been exposed as discriminatory.

(2070 words)
18581

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