Over the last few years there have been a number of powerful nominations for the title of stupidest Parliamentarian. This blog has in the past made what I thought was a powerful case for the prize to be jointly shared between Messrs Peter Bone and Phillip Hollobone, and the Secret Barrister has repeatedly and persuasively argued the case for Phillip Davies, and indeed may do so again at greater length in his eagerly awaited book. Just to prove that Conservatives do not have a stranglehold on the competition along comes Harriet Harman with a legislative proposal which is guaranteed to produce injustice and, for good measure, is virtually certain to be ruled incompatible with the Article 6 right to a fair trial under the European Convention on Human Rights.

Ms Harman has tabled an amendment to the Prison and Courts Bill which is currently working its way through Parliament. The effect would be to amend S.41 of the Youth Justice and Criminal Justice Act 1999, the provision that prevents, in most cases, the cross-examination of complainants in sex cases about their sexual history. At present subsection (1) reads as follows:

Restriction on evidence or questions about complainant’s sexual history.

(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.

The emphasis is mine, as these are the most important words that Ms Harman wishes to remove.

(Note that there is no restriction placed by this section on prosecution evidence. It is directed only towards evidence that the defence may wish to adduce or questions that they might wish to ask).

There then follow a number of circumstances set out in detail in subsections (2) to (8) in which it is possible for a trial judge to allow such cross-examination. The provisions are quite complex and I shall not trouble you with the detail here, but they include the situation in which the defence wants to rebut something the complainant has said in evidence (let’s say by way of a typical example, “I would never willingly have had sex with the defendant because I have never had sex with a stranger at a party”); and the situation which arose in the Ched Evans case in which a complainant’s behaviour on another occasion was arguably so similar to that on the occasion in dispute that the similarity “cannot reasonably be explained by coincidence.” Even then the evidence remains inadmissible unless the trial judge is also satisfied that a refusal to allow such questioning “might have the result of rendering” any guilty verdict unsafe.

It’s no good pretending that the existing S.41 is a particularly good or well-drafted piece of legislation. It is not. It is confusing and difficult to follow. It could probably do with a complete re-write to remedy those faults.

Nevertheless S.41 as it currently stands is extremely restrictive. There is a complete ban on any question when it is“reasonable to assume that the purpose (or main purpose) for which it would be … asked is to establish or elicit material for impugning the credibility of the complainant as a witness.” In other words even if you wanted to you cannot make the argument that because a complainant has slept around she shouldn’t be believed.

But it is far more restrictive than this. There is no obvious way, for example, that it permits cross-examination designed to reveal the fact that complainant and defendant were in a sexual relationship at the time of an alleged rape. Interpreted literally, if a complainant chose not to mention this pretty important piece of information a defendant would not be legally able to reveal the true position, either by cross-examination, or by mentioning the fact in his own evidence. For this reason, in one of the earliest cases in which the Human Rights Act featured in a criminal case, the House of Lords ruled in R v. A [2002] 1 A.C. 45 that evidence of a complainant’s previous sexual history was admissible “where that evidence, and questioning concerning it, was so relevant to the issue of consent that by not including it the fairness of the trial would be brought into question.” The Court had to strain the tortuous language of S.41 almost to breaking point to arrive at this conclusion, but by doing so it meant that courts were not forced to conduct rape trials that would otherwise have been unfair, or alternatively forced to refuse to conduct them at all.

Ms Harman’s proposal has the sole virtue of simplicity. If her amendment is passed S.41 would read, in its entirety, as follows:

(1) If at a trial a person is charged with a sexual offence, then—

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.

That’s it. Subsections (2) to (8) would disappear. There would be no exceptions. Ms Harman’s amendment sweeps them all away, along with the discretion of the trial judge.

A defendant would not be able to give evidence that he had been in a sexual relationship with the complainant.

He would no longer be entitled to rebut anything a complainant chose to say about her own sexual behaviour. She (or he) could say anything, safe in the knowledge that the defendant would be absolutely prohibited from rebutting even the most preposterous lies.

And even if defence, prosecution and judge were all to agree that a refusal to allow the cross-examination (or adduce the evidence) was certain to create an unfair trial, a judge would still be unable to do anything about it.

The inevitable result of such a change in the law would be to produce grotesque injustice. It could not do anything else. How could it possibly always be right that a defendant should be prevented from telling a jury that he was in a sexual relationship with a complainant? Of course the existence of such a relationship does not mean a rape could not take place, and nobody in their right minds would ever dream of making such an argument. Of course, there are cases in which the existence – perhaps in the distant past – of such a relationship would be entirely irrelevant. Yet a law which prevented juries from ever knowing about it, except when volunteered by the prosecution, would, in many cases, mean asking jurors to decide whether a man is guilty of rape without exactly the sort of crucial evidence about their relationship which might help them to make the correct decision.

So how does Ms Harman defend her amendment? Over to the the Guardian where she set out her stall:

Introducing a complainant’s sexual history into a rape trial is “based on the old notion that there were two sorts of women – those who were ‘easy’ and those who were virtuous – and if you were easy, you would have sex with anybody, because you were that sort of woman ….”

What Harman does not say is that the straw-man argument which she ridicules is never made and is flatly prohibited by the law as it stands. In any case, even if it were the problem that she claims, her amendment goes far beyond such cases. It prevents an accused man making the perfectly respectable argument that because a woman had behaved in a sexually similar way with him on numerous occasions in the past he reasonably believed that she was consenting on the occasion in question.

Harman continues:

“What you have to look at is the evidence and the information around that encounter, not any previous sexual encounters.”

Let’s say that the evidence is that the man tied the complainant up and then beat her on the buttocks before having intercourse with her. It is the sort of thing that a particularly nasty rapist might do. On the other hand it is also a thing that consenting adults do to one another. His defence is that this was all a consensual game, and moreover something that the two of them had happily done to each other hundreds of times before. Under the Harman amendment you could look at the “information around that encounter,” the rope, the beating and the bruises. What you could not do is put the couple’s past history into the equation which would put that information in a completely different light. The complainant could even say “I would never consent to that sort of thing, bondage and sado-masochism repel me,” and the man would be prevented in law from rebutting her lies. Such a situation would be absurd and (if the stakes were not so high) almost laughably unfair. It is possible to imagine all sorts of other situations, but it is not necessary because the law and human nature has a way of throwing up the unexpected in sex cases, as in life generally.

Faced with a case in which a defendant wished to introduce evidence which the trial judge accepts is both relevant and necessary to avoid an unfair trial, what is he or she to do under Harman’s law? The answer is one of three things:

(a) Ignore the law, preserve the fairness of the trial and allow the “forbidden” evidence in anyway;

(b) Allow an unfair trial to continue; or

(c) Rule that Ms Harman’s amendment has meant that a fair trial is impossible, and stay the proceedings accordingly.

Judges are sworn to uphold the law, so (a) would be impossible.

Likewise, courts could not legitimately allow (b). Judges have both an inherent jurisdiction to prevent unfair trials, and a statutory duty under S.6 (1) of the Human Rights Act not “to act in a way which is incompatible with a Convention right.” Since one of the Convention rights is the Article 6 right to a fair trial, trial judges cannot lawfully permit unfair trials to take place.

That leaves only (c). The (doubtless unintended) consequence of Ms Harman’s amendment becoming law would thus be that some rape trials would have to be discontinued because under her proposed rules they simply could not be conducted fairly. If a fair trial is impossible English law is the same as international law: it should not take place at all.

The charitable conclusion to be drawn from this is that Ms Harman is just very, very stupid; that she is unable to think beyond crude sloganising of the sort that draws easy applause at Labour Party events. Perhaps there is something in this, but I don’t think it will do. Ms Harman cannot be that stupid. She was a successful solicitor before entering Parliament, taking on and winning high profile and complicated cases.

Nor can she claim ignorance. She is a previous Solicitor General and Minister of Justice. She must know that if it passed into law her amendment would immediately breach the European Convention on Human Rights, and thus our own Human Rights Act (of which she is an enthusiastic supporter). It is inconceivable that she is ignorant of R v. A in which the House of Lords made it crystal clear that a blanket ban on all “sexual history” evidence would breach the Article 6 right to a fair trial.

Ms Harman has been a very eloquent defender of the principle of the Human Rights Act. Here she was in 2015 speaking on the 800th anniversary of Magna Carta:

“Defence of human rights even in the face of unpopularity

Believing in those rights is one thing. But their application is quite another. It’s hard. What those founding signatories knew – and what remains true today – is that defence of those rights has to be uncompromising.

Defence of those rights will not always be popular. And sometimes will be deeply unpopular. As US Chief Justice Frankfurter observed as long ago as 1950:

“The safeguards of liberty have frequently been forged in controversies involving not very nice people”

We must defend the rights of every individual – those we don’t agree with or approve of, as well as those we do agree with and approve of. We have to protect the minority from the majority.

And we have to protect the individual from the state when it gets it wrong.”

Please, Ms Harman, go back and read Chief Justice Frankfurter again: “we must defend the rights of every individual – those we don’t agree with or approve of, as well as those we agree with and approve of.” Do you know what? Amongst other people he is talking about men (and women) accused of sex crimes. They too have the right to a fair trial.

You can of course garner cheap applause from your supporters. You can insist that people accused of rape should not have the same rights to defend themselves that other defendants have. You can accept the collateral damage that your ridiculous gesture-law would lead to both unfair convictions and unfair acquittals of defendants in sex cases. What you cannot do is to pose as a defender of human rights in principle, whilst sponsoring a change in the law that would institutionalise unfair trials.

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