#4751 - Examining Sexual Complainants - BPC Criminal Evidence

SEXUAL COMPLAINANTS Examining on Previous Sexual Behaviour Rule: No evidence may be adduced/questions may be asked in cross-examination about any sexual behaviour of Witness (s41(1) Youth Justice and Criminal Evidence Act) "Sexual offence" - any offence in Sexual Offences Act 2002, Part 1 "Sexual behaviour" - any sexual behaviour/experience, whether or not involving Defendant, but excluding anything which is alleged to have taken place as part of the offence * matter of impression and common-sense Application for leave to adduce the evidence/ask the Question may be made by/on behalf of Defendant - Court will not grant leave unless: If the question/evidence relates to a relevant issue in the case and 1. the issue is not an issue of consent, or 2. it is an issue of consent, and the sexual behaviour to which the evidence/Question relates is alleged to have taken place at/about the same time as the offence 3. it is an issue of consent, and the sexual behaviour to which the evidence/Question relates is alleged to have been, in any respect, so similar: # to any sexual behaviour of Complainant which took place as part of the offence, or # to any other sexual behaviour of Complainant which took place at or about the same time as the offence that the similarity could not be reasonably explained as coincidence But not if it appears to the court to be reasonable that the purpose/main purpose of the evidence/question is to establish/elicit material for impugning the Complainant as a Witness. 4. If the evidence/question relates to any evidence adduced by Prosecution about Complainant's sexual behaviour, and # in the court's opinion, it would go no further than to enable the evidence adduced by the Prosecution to be rebutted/explained by Defendant. The Question/evidence must relate to a specific instance/instances of Complainant's Previous Sexual Behaviour And Where a refusal of leave might have the result of rendering unsafe a conclusion of the Tribunal of Fact on a relevant issue Past False Sexual Complaints Normally Qs/evidence about false past complaints are not "about" Complainant's sexual behaviour - relate to her statements in the past, not her sexual behaviour Improper to put such Qs in order to elicit evidence about Complainant's sexual behaviour