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In R v A (no. 2) [2002] 1 A.C 45 Lord Slynn favoured a narrow interpretation which would not allow evidence of sexual behaviour to be adduced other than in cases where the acts relied on were ‘really contemporaneous’. The case of R v V [2016] EWCA Crim 1434 provides a useful illustration of the Court’s approach to the application of Section 41(4). In this case the Court accepted that Section 41(4) could not prevent all evidence which had a bearing on whether the complainant was credible in the sense that she was telling the truth about the events at trial: if that were the case, the subsection “would exclude almost all defence evidence or cross-examination, as the purpose of that is almost always to suggest that the complainant is wrong and the defendant is not guilty”. What is instead required is careful scrutiny of the stated reason or rationale for the proposed line of questioning. Does the proposed questioning merely seek to perpetuate the second of the twin myths identified by Lord Steyn in R v A (that “unchaste women” are less worthy of belief) or does it instead direct towards evidence on matters that have a “direct bearing” on whether or not the allegation before the jury is true? In other words, the term “credibility”, when used in section 41(4), does not act to exclude evidence that undermines a complainant’s account of the allegation at trial, but to prevent the introduction of evidence that generally suggests she is the type of person whose word should not be believed.
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Rule 22.4 requires any applicant to give particulars of any evidence they want to introduce and any questions they want to ask. It is extremely important that the defence put in writing, either in the written application or at the hearing in private, what questions they propose to put to the complainant. It is only by insisting on this that the court will be able to maintain a degree of control over the questioning if it is permitted and will prevent the defence straying into areas that would be forbidden by Section 41 and outside the parameters established by the Judge’s ruling.
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Section 41(3)(a) applies where the evidence or question relates to a relevant issue in the case and that issue is not an issue of consent. In R v A (no 2) [2002] 1 A.C 45 Lord Hope referred to evidence which is proffered for specific reasons pointing to guilt or innocence as opposed to impermissible generalisations about consent. He gave four examples of issues falling within “issue other than consent”. The prosecution had disclosed the complainant’s medical records in which it was recorded that the complainant had described life choices involving risky sexual behaviour. The appellant sought leave to cross examine the complainant about the details of this behaviour and her attitude to risk arguing that the risk taking in the records was similar to the risky sexual encounter when the appellant and the complainant had met. In R v L [2015] EWCA Crim 741 the prosecution relied upon medical evidence which suggested penile penetration had caused damage to the hymen. The defence were able to reference a previous rape of the same complainant when she was overseas.
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Prediction of miscarriage in first trimester by serum estradiol, progesterone and β-human chorionic gonadotropin within 9 weeks of gestation Khalil, A., Syngelaki, A., Maiz, N., Zinevich, Y. & Nicolaides, K. H. Maternal age and adverse pregnancy outcome: a cohort study. Ultrasound Obstet Gynecol 42, 634–43 (2013).
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The CPR permit the court to vary this timetable, even after the expiry of the time limits.(Rule 22.8)
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