THE BLOG
17/12/2017 22:20 GMT | Updated 17/12/2017 22:20 GMT

Why Laws On Sexual History Evidence Still Need Reform

The Government has undertaken its review of the law on sexual history evidence in sexual offence trials and declared that all is well. But this is not quite the end of the story. There are further questions to ask about the study on which this announcement is based. The law itself also remains unnecessarily complex and flawed – exemplified by fact that the Government’s report gets the law wrong. Not surprisingly, therefore, reform is still needed.

Crown Prosecution Service review of cases

First to the audit of rape cases carried out by the CPS on which the Government report is based. This review examined 309 cases and reports that in only 8% of cases was sexual history evidence admitted. If this is the true extent to which sexual history evidence is used in rape trials, it is a welcome change from previous practice.

My concern though is that this result is so different from all other research conducted on rape trials in England & Wales. It also differs from research in other countries where such evidence has been found to be routinely used: in Ireland (two-thirds of cases), Scotland (72% of cases) and New Zealand (43% of cases).

Are the rules being followed?

One reason for the difference is likely to be that while the CPS review only looked at formal applications recorded in CPS files, previous research has found that much sexual history evidence is admitted without any formal application.

The most comprehensive study to date was funded by the Ministry of Justice in 2006 which found that applications to admit sexual history evidence were made in just under one third of trials. Crucially, however, in practice this figure increased to two-thirds when including evidence admitted without a formal application, in contravention of the procedural rules.

More recently, a review of thirty rape trials found that sexual history evidence was introduced in just over one third of trials, again often in breach of the procedural rules. And yet another study found that in 4 of 8 trials observed, sexual history evidence was included without an application and there was little intervention by judges to stop this practice.

In one case, for example, a judge decided that sexual history evidence about an ex-partner could be included without a defence application, as it was relevant and admissible. However, the unedited police video was show to the jury and it included sexual history evidence with other men. Therefore, not only was there no formal application (meaning there would be no record on a CPS file), but irrelevant evidence about third parties was unnecessarily included without challenge.

In another equally worrying case, sexual history evidence with men other than the accused was similarly introduced without an application when another unedited police video was shown. Both the prosecution and defence referred to the evidence, with the defence talking about the complainant’s ‘promiscuous sex life’ in her closing speech.

These studies observe actual trials, going beyond case files notes (which lack detail and are sometimes unclear as the CPS review also found). They do involve small numbers, though they echo international evidence. What they do is identify a major omission in the CPS audit: sexual history evidence appears to be routinely introduced in contravention of the procedural rules meaning that it won’t show up in a CPS case file.

What’s the prosecution doing about this?

Perhaps not enough. The CPS audit did find the prosecution objecting in a third of cases, agreeing in as many more, but no clear information on another third of cases. In some cases, mostly notably rape in a domestic abuse context, where the prosecution will lead with sexual history evidence. But research has also found that prosecutors often agree to evidence being introduced, or fail to challenge it, sometimes because they too wrongly consider such evidence relevant and admissible. This is why some other countries require the prosecution to make a formal application if they want to use sexual history evidence, and why I and others including Vera Baird QC have recommended that there should always be a hearing before any sexual history evidence is admitted.

It is welcome, therefore, that the CPS are to be carrying out further training for prosecutors. It is also why a review of the procedural rules is also welcome which should mandate written applications and judicial rulings.

Government getting the law wrong

Perhaps even more worrying is that the Government report misunderstands the current law. It says: ‘The law makes clear that sexual history evidence cannot be used ... to infer that a complainant’s sexual experience - with anyone - or sexual reputation made it more likely that they consented’. It would be good if this was true, but it’s not.

In the leading case in the area, Lord Steyn said: ‘good sense suggests that is may be relevant to an issue of consent whether the complainant and accused were on-going lovers or strangers’. Regarding evidence with men other than the accused, he said that sexual history evidence is ‘almost always’ irrelevant: he categorically did not state that it is never relevant and never admissible for this purpose.

More recently, in the Ched Evans case which sparked the Government’s review, the Court of Appeal held that there was to be a retrial because sexual history evidence with men other than the accused ‘might support a defence of actual consent’.

So, while the law in other countries does specifically prevent sexual history evidence being used to support a claim of consent - in Canada for example - this is not the current law in England & Wales. If the Government wants this to be the law, it needs to introduce reform.

Reform still needed

Overall, therefore, while the headlines figures of this report may seem encouraging, there remain many outstanding questions about what is happening in practice in our courtrooms. The Government also needs to better understand what the law actually is before announcing that no reform is needed.