Sexual-history restrictions and good-character directions

Two separate protections, not mirror-image character gateways. Sexual-history restrictions control certain evidence and questions about a complainant; good-character directions explain the relevance of a defendant's character. A complainant's sexual activity is not, merely because it is sexual, misconduct or evidence of dishonesty. Conversely, a defendant with no convictions is not automatically entitled to every conceivable favourable direction regardless of other misconduct or the evidence they rely on. YJCEA 1999 ss 41–42; CJA ss 98, 112(3); HunterKey caseR v Hunter[2015] EWCA Crim 631, [77]–[83].

Sexual history: identify the restriction before an exception. At a trial where a person is charged with a sexual offence, YJCEA s 41 restricts evidence introduced, and cross-examination questions asked, by or on behalf of any accused, about the complainant's sexual behaviour. It covers behaviour with the accused as well as with other people. Section 42's definition broadly includes sexual experience, but generally excludes the behaviour alleged to be part of the very event charged, subject to its express exceptions for the comparison and prosecution-evidence provisions. Do not describe evidence of the charged event itself as previous sexual history merely because it concerns sexual conduct. YJCEA ss 41(1), 42(1)(c).

Relevance alone does not secure leave. The accused must apply. The court may grant leave only if a route in s 41(3) or (5) applies and refusal might render unsafe a conclusion on a relevant issue. The proposed evidence or questions must concern specific instances of alleged sexual behaviour. There is no general character gateway allowing questions because a person has had previous partners. YJCEA s 41(2), (6).

Credibility is not an unrestricted fifth route. For s 41(3), evidence or questions are not treated as relevant to an issue if the court reasonably considers that their purpose or main purpose is to impugn the complainant's credibility as a witness. Apply that express condition, rather than assuming that saying “credibility” avoids the restriction. The separate prosecution-rebuttal route in s 41(5) has its own limits. YJCEA s 41(4)–(5).

Do not import an obsolete substantive consent rule. The historical facts in R v A pre-date the Sexual Offences Act 2003. For the modern rape offence, the question includes whether the accused reasonably believed in consent, assessed in all the circumstances including steps taken to ascertain consent. The distinction between actual consent and belief for s 41 purposes does not remove that substantive requirement. The offence's complete elements belong in the substantive criminal-law prerequisite, not in the character gateway. Sexual Offences Act 2003 s 1(1)(c), (2); YJCEA s 42(1)(b).

Use Part 22, not Part 21 as a workaround. The defence application must be served on the court officer and every other party as soon as reasonably practicable after the grounds become known, and no later than 10 business days after prosecution disclosure of the material relied on. It must identify the issue, particular evidence and proposed questions, the s 41 exception, and the name and date of birth of a witness whose sexual-behaviour evidence is sought. Responses are ordinarily due within 10 business days after service; the court may shorten or extend Part 22 time limits even after expiry. That power does not dispense with statutory leave. CrimPR 22.4, 22.6, 22.8.

The leave hearing is private; the permitted scope must be clear. The court hears the application in private and without the complainant. Other parties must be present or have had at least 10 business days in which to make representations, and the court must be satisfied it has adequately considered the complainant's rights. It announces reasons publicly, without the jury, and specifies what evidence or questions are permitted. The prosecutor who proposes to call the complainant must promptly inform them of the decision and explain resulting arrangements. If cross-examination is allowed, the court must set appropriate ground rules; r 22.7 also allows a special-measures application within ten business days after the decision. Participation support is distinct from admissibility. YJCEA s 43(1)–(2); CrimPR 22.2–22.3, 22.7.

One safeguard does not displace another. Satisfying s 100 cannot bypass s 41: CJA s 112(3) expressly preserves the restriction. Permission under s 41 does not override other exclusion rules either. Keep any hearsay issue with the confession/hearsay chapters and the detailed arrangements for witness questioning with Chapter 9 (Witnesses, Special Measures, Experts and Privilege). The correct outcome may require more than one evidential rule to be satisfied. YJCEA s 41(8).

Good character: identify the two functions. The credibility limb helps the tribunal assess whether to believe D's evidence or an exculpatory pre-trial account on which D relies. “Exculpatory” means tending to clear D of the allegation. The propensity limb concerns whether D was likely to commit the offence. It can apply even where D does not testify and relies on no such account. Good character is neither a defence nor a guarantee of truthfulness or innocence. R v VyeKey caseR v Vye[1993] 1 WLR 471 [1993] 1 WLR 471; R v AzizKey caseR v Aziz[1996] AC 41 [1996] AC 41; HunterKey caseR v Hunter[2015] EWCA Crim 631, [68], [77]–[80].

Absolute good character: entitlement, with relevant wording. D has no previous convictions or cautions and no other reprehensible conduct alleged, admitted or proved. “Other” matters: the very allegation being tried does not itself destroy the category. D is entitled to the propensity direction and, where D gives evidence or relies on an exculpatory statement, the relevant credibility direction. D need not additionally produce evidence of positive good deeds to qualify for that category. The judge tailors the wording; the jury decides the weight. A general statement that all character directions are discretionary would be wrong. HunterKey caseR v Hunter[2015] EWCA Crim 631, [68], [77]–[78].

Effective good character: discretion about status, not about the resulting entitlement. Previous convictions or cautions may be old, minor and irrelevant to the charge. Those features are cumulative. The judge considers all the circumstances in deciding whether to treat D as of effective good characterGlossary termEffective good character; the jury does not decide that legal classification. Once the judge does so, D is entitled to the relevant character direction, modified to avoid a misleading picture of the record. Oldness alone or lack of a similar conviction is insufficient. HunterKey caseR v Hunter[2015] EWCA Crim 631, [79]–[80].

Other material bad character: no automatic good-character entitlement. D does not become effectively of good character merely because no previous offence resembles this charge, because D disclosed the record themself, or because the prosecution did not seek to use it as propensity evidence. Outside the absolute and effective categories, the judge has a broad discretion to give an appropriate modified direction where it fairly assists, or to withhold one where it would mislead. Distinguish a direction controlling adverse use of bad character from a positive good-character direction. HunterKey caseR v Hunter[2015] EWCA Crim 631, [81]–[83].

Raise the issue early and identify the precise direction. Discuss the relevant record, other misconduct, any exculpatory account and the proposed wording before the issue becomes a last-minute summing-up dispute. Where D introduces their own bad character in the Crown Court, notice of the requested direction is expressly required at the same time under CrimPR 21.4(8). Seek correction of an omitted or inaccurate direction while the court can address it; failure to give a direction does not automatically mean that a conviction must be quashed. Each defendant is assessed separately: one defendant's good character is not evidence of another's guilt. In a summary trial the tribunal must take the relevant character into account in its reasoning, although there is no jury direction to deliver. HunterKey caseR v Hunter[2015] EWCA Crim 631, [68]–[69], [77]–[83]; CrimPR Parts 24–25.