Dear Jess and colleagues

I read with interest your letter today to the Attorney General, in which you expressed some concerns about the operation of the law in the Ched Evans case, and made some suggestions as to how the law on using a complainant’s past sexual history might be changed. I hope you don’t mind me writing to you in this open letter format; Ched Evans has become, somewhat unintentionally, a source of particular interest for me over the past week, and I have some observations that I hope will inform your campaign.

I write, I should make clear, in the spirit of solidarity. You and I are on the same team. I agree wholeheartedly with what lies at the heart of your campaign; that is the fundamental right of complainants, particularly in cases of sexual abuse, to be treated with dignity and respect in criminal court proceedings. Giving evidence, any barrister will agree, is a uniquely difficult experience. When the subject matter is so personal and when questions and evidence invade the most private spaces of a witness’ life, it is plainly even harder, and the prospect of being asked about one’s sex life in court no doubt deters many victims of sexual abuse from coming forward. As a criminal lawyer who prosecutes as much as defends, I’ve seen first hand the distress that the trial process can cause to vulnerable victims of serious crime. It is therefore right that there are rules to minimise, as far as we fairly can, the discomfort of witnesses in the trial process. It is also right, I’m sure you’d agree, that we ensure that the right to a fair trial, enshrined in domestic and international law – perhaps most famously in Article 6 of the European Convention on Human Rights – is not disproportionately interfered with. The consequences of conviction, particularly in sexual cases, are as you know serious, and it is imperative that we avoid the injustice of wrongful convictions. It’s a balancing exercise: The rights of a complainant versus the rights of the defendant. We need to find the right balance.

I understand from your letter today to the Attorney General that you collectively feel that the balance is wrong. That it’s currently weighted against the complainant. Your fear is that the reporting of the decisions in the Ched Evans case might serve to deter victims of sexual abuse from cooperating with the authorities. Again, on that point, you and I share the same concerns. It is imperative that serious criminal allegations are properly litigated, and that complainants are not deterred by horror stories that they read in the media. I’m sure you agree that crucial to securing this is the need for accuracy. We don’t want newspapers printing half-truths and speculation. We don’t want knee-jerk whoops and hollers from people who don’t have all the facts. We want a climate of calm and informed discussion. Members of Parliament, with their public platform and media reach, are central in this regard. It’s with this in mind that I hope to assist, if I may, by responding to some of the points made in your letter.

Labour women working together to improve experience of rape and sexual violence victims in our courts. Our letter to the AG and Justic Sec pic.twitter.com/hJc31Wzy3U — Jess Phillips MP (@jessphillips) October 24, 2016

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You start by expressing your “grave concerns for the precedent set last week in the case of footballer Ched Evans”. Now I have already offered some views on whether a precedent was in fact set (you can find them here if you’re interested), but I feel obliged to point out that last week was the trial of Ched Evans. It was at Cardiff Crown Court, and, as you know, no Crown Court can, as a matter of law, make a ruling that amounts to precedent. Only the High Court, Court of Appeal and Supreme Court can do that. The Crown Court merely followed the Court of Appeal’s ruling from April, when the CoA allowed Evans’ appeal and ordered a retrial after confirming that fresh evidence should be admitted. No doubt that is the point you are making, but I’m slightly concerned that, when you say things in your opening paragraph such as “precedent set by the proceedings and the judge’s ruling” and “the verdict and events in this case sets [sic] a dangerous precedent” – and even suggest that the jury “quashed” Evans’ conviction – you give the impression of not being entirely au fait with how the law works. Which isn’t a hanging offence – law is complicated. But I’m sure you wouldn’t want to leave the impression that you are confused as to the operation of the law, given how eager you all are to change it.

You then discuss the particular provision of law that causes you worry. So that we’re all on the same page, we all know that section 41 of the Youth Justice and Criminal Evidence Act prohibits leading evidence or asking questions concerning a complainant’s previous sexual behaviour in sex cases. There are certain exceptions to this rule, and the Court of Appeal found in Ched Evans’ case that the complainant X’s previous sexual behaviour was relevant to the issue of consent and was “so similar” to the sexual behaviour of X at the time of the alleged rape that “the similarity cannot reasonably be explained as a coincidence“. It was therefore admissible under one of the statutory exceptions, found at section 41(3)(c)(i) of the Youth Justice and Criminal Evidence Act 1999. I’ve emboldened the (i) because in your letter you refer throughout to section 41(3)(c)(ii), a similar, but different provision of the Act which was not relevant in Ched Evans’ case. I don’t for a moment suggest that you haven’t read the Court of Appeal judgment, or the Act itself, particularly as you confidently accuse the Court of Appeal of falling into “serious legal error”, but I’m sure you would agree that attention to detail is important in this instance.

Attention to detail, after all, forms the substance of your complaint about the present legislation. Your fear is that the Court of Appeal has, in interpreting s.41(3)(c)(i), adopted an interpretation of “similarity” that was far wider than Parliament intended, and that this opens the door to defendants and their lawyers applying gratuitously to cross-examine complainants on their sexual history. You also raise a concern about social media being used by defendants to solicit information about former partners, but I’ll leave that aside, if I may, as it’s tangential to the main issue you raise, which is the drafting of the legislation.

You state that the subsection “was intended to be used only for unusual sexual behaviour” [my emphasis], and quote approvingly the former Attorney General Lord Williams speaking in the House of Lords during the debate on the 1999 Act. You draw attention to his use of the words “strikingly similar” when discussing the application of what would become s.41(3)(c)(i), and from there build your argument that a test of “unusualness” ought be added to that of “similarity”, to ensure that similar but non-unusual sexual behaviour – such as in your view occurred in Evans’ case, would not be admissible to go to the issue of consent.

Now, I’m a little concerned at some of what follows. You say, “the only other case where it is known that [previous sexual behaviour] has been allowed in under this subsection was quoted in the Evans case and concerned having sex upright in a children’s climbing frame”. This is a reference to R v T (Abdul) [2004] 2 Cr App R 32, which is certainly a case in which this section was relied upon (and which the Court of Appeal ruled reflected an appropriate use of the provision), but to describe s.41(3)(c)(i), as you later do, as having been “successfully used only once in 16 years”, is misleading. The fact that the Court of Appeal only referred in its judgment in Evans to one such case does not mean that it is the only such case. As an undergraduate law student could tell you, the Court of Appeal is not in the habit of listing every single authority that has ever been decided on the same point. In fact, it positively discourages advocates from relying on authorities unless they contribute something substantive to the argument at hand. A rudimentary search on Westlaw, the leading database of legal cases, brings up more Court of Appeal and House of Lords case law referring to section 41 than I can begin to count, so unless you have spent the past week carefully analysing the last 16 years of Court of Appeal decisions, your proposition is, with respect, astonishing. Not to mention that you seem to forget the unrecorded cases in the Crown Court in which this provision is successfully relied upon. This is not often, I must stress – successful section 41 applications are rare. But even I don’t suggest they are so rare as to amount to one single case in 16 years. I’m mystified as to why you make this bizarre claim.

If I were mischievous, I’d go further and ask how, in any event, this supports your argument – are you relying on how rarely-used this provision is to support your contention that it is used too much, and must therefore be changed? But to ask that question would be disingenuous on my part, so I won’t; your point is clearly that the Court of Appeal has widened the scope, and your fear is that unless Parliament acts quickly to narrow the provision, it will be abused by ruthless defence lawyers. I’ll address that shortly.

Before I do, though, I note that you throw in another prediction, that “The outcome in the case of Ched Evans will send the signal once again that if you can discredit a complainants’ [sic] sexual behaviour or draw comparisons with even commonly used sexual practice with events claimed to have taken place in a particular incident to somehow indicate evidence of consent“. To my eye, there’s a word missing somewhere as I can’t get that sentence to make sense, but I have to take issue with the use of the words “discredit a complainant’s sexual behaviour”. As you know, s.41(4) expressly provides that a court must rule evidence of sexual behaviour as irrelevant if the purpose, or main purpose, for adducing it is “for impugning the credibility of the complainant”. For you to ignore this, and to use phrases such as “victim blaming” is not a fair nor accurate representation of the current law.

But back to the scope of the provision. You say that the criterion that the behaviour be “unusual or bizarre” was “agreed by everybody involved in the House of Lords”. I’d respectfully suggest not everybody involved, otherwise it would appear in the legislation. It doesn’t. Parliament – Commons and Lords – decided on the test of “so similar that it cannot reasonably be explained as coincidence”. Nevertheless, let’s look at what you propose. You seem to offer two solutions. The first, which you describe as “the easiest solution”, is to insert the words “and so unusual” into s.41(3)(c)(i) as an additional, specified criterion. The second, in the next paragraph, is: “We believe that the use of a complainant’s sexual history should never be used in our courts as evidence of consent” [my emphasis]. This is quite something. This would amount to a repeal of the whole of subsection (3)(b) and (c). This would mean that, even in the climbing frame example that you appear to concede was an appropriate use of previous sexual history as evidence supporting a defence of consent, that evidence could not be admitted. I wonder whether you mean what you say. I hope this is an error. If so, I’d be grateful for clarification as to exactly what you are asking for. You’ll be aware, of course, that s.41(3)(c)(i) was only one of two gateways under which the Court of Appeal said the evidence in Ched Evans’ case was admissible, the other being s.41(3)(a) (where the evidence is relevant to an issue other than consent). In that case, the evidence was relevant not only to the issue of consent, but of Evans’ reasonable belief in consent. Your letter is silent as to whether you consider s.41(3)(a) to be in need to similar fundamental reform.

In light of this, when I return to your first, less drastic, “easiest” solution, inserting a further criterion so as to narrow s.41(3)(c)(i), I’m a little concerned that perhaps you haven’t given as much thought to the practical, moral and legal consequences of your proposal as you might want to. I don’t pretend that I have, either. Who has the time? With that in mind, I have an idea. I think we need a higher court to consider your suggestion. We want the most senior judiciary – more senior even than the Court of Appeal – to review the operation of section 41. They can have that extract from Hansard put before them. They can assess how section 41 as a whole, and in particular s.41(3)(c)(i) should be interpreted, so as to offer maximum protection to complainants, without infringing on the absolute right to a fair trial. And we should have the finest Q.C.s to argue the points before the court. If we’re talking dream teams, for the defence I’d go for Peter Rook Q.C. (the Judge who writes the definitive practitioner textbook on sexual offences law). For the prosecution, I’d have David Perry Q.C. – the deputy High Court Judge who edits the judicially-endorsed criminal law practitioner textbook and represents the government in all the big cases at the European Court on Human Rights. And, as this is fantasy stuff, if I’m allowed a third party intervener, as this is an important point, I’d splash out on the country’s best-known, globally-respected public law Q.C., presently instructed in the Brexit proceedings at the High Court – Lord Pannick. Let those megabrains, and the finest judges in the land, dwell on the historical, moral and philosophical groundings of section 41, ingest the highest-brow academic theses on the subject and indulge in comparisons with corresponding legislative regimes in foreign jurisdictions. Let them consider not only the impact of domestic law, but international concerns, and the applicability of fundamental human rights as guaranteed in longstanding, cherished treaties. Having done so, they can give us a fully considered answer. And then we, and the Court of Appeal, will know what to do.

Agreed?

Good. Because, as luck would have it, that’s exactly what we had. In 2001, the House of Lords considered this whole issue in R v A [2001] UKHL 25. They particularly analysed the operation of the “similarity” test, and whether a “striking similarity” or “unusualness” was required. This was not a back-of-the-envelope job. The judgment stretches to 179 paragraphs. Having reflected on the purpose of the legislation, the need to protect the interests of vulnerable complainants and the importance of not depriving the defence of important, relevant evidence, they concluded that the “unusual” or “striking similarity” test was not correct. For one, Parliament in drafting section 41 had deliberately chosen not to use those words. But more importantly, such an interpretation would be so, so strict as to imperil the right to a fair trial. The Law Lords gave lengthy, detailed examples of the flaws of such an approach, of the injustice that would reign were defendants prevented from putting before the court relevant, probative evidence of a complainant’s previous sexual history. I won’t regurgitate them here, but they are all set out in the judgment. I urge you to read them (see Lord Hutton at [159], for instance). The Lords expressly considered whether such evidence should be”unusual” in order to clear s.41(3)(c)(i), and concluded in the negative. There had to be similarity such that it was beyond coincidence, but to say it had to be unusual was unduly restrictive. Lord Clyde met the issue head on, and said: “[T]he similarity must be such as cannot reasonably be explained as a coincidence. To my mind that does not necessitate that the similarity has to be in some rare or bizarre conduct.”

The test, approved by the House, was summarised by Lord Steyn:

“The effect of the decision today is that under section 41(3)(c) of the 1999 Act, construed where necessary by applying the interpretative obligation under section 3 of the Human Rights Act 1998, and due regard always being paid to the importance of seeking to protect the complainant from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the convention. If this test is satisfied the evidence should not be excluded.”

The reference to the Human Rights Act appears because the House of Lords was specifically asked whether the operation of section 41 was incompatible with the right to a fair trial under Article 6 of the European Convention on Human Rights. And it was a close-run thing. Although they managed to swerve the ultimate question, the majority expressed serious concerns that section 41(3)(c)(i), as presently drafted, was “disproportionately restrictive” [per Lord Slynn], and “amounted to legislative overkill” [per Lord Steyn]. It was only by interpreting the legislation in the way above that they were able to say that the legislation was just compatible with ECHR standards. That test by Lord Steyn was the deal breaker.

And that is the test that the Court of Appeal in Evans followed. They cited R v A extensively, quoting the Law Lords at length in the judgment. And so accusing the Court of Appeal of ignoring the views of “everybody in the House of Lords” has a particular irony, no? The Court of Appeal, as required by law, followed the binding authority of the Appellate Committee of the House of Lords, rather than the non-binding words of the debating chamber.

Your complaint, therefore, I would suggest, is 15 years too late. A precedent was set, but not by Ched Evans’ case. That matters not, of course – you can still pursue your aim to amend section 41. But I’d ask, before you do, that you read R v A carefully. As you know, section 3 of the Human Rights Act 1998 requires courts to interpret domestic legislation in a way which is compatible with the rights set out in the European Convention on Human Rights. If legislation simply cannot be read compatibly – if there is an irreconcilable conflict – the court will issue a “declaration of incompatibility”. These are extremely rare, and obviously embarrassing to Parliament. It is the court saying: You have legislated in a way that fundamentally contravenes international human rights.

I’d suggest that it is clear from R v A that, if you were to succeed in your desired legislative reform to make section 41(3)(c)(i) even more restrictive than it presently is, there would be a declaration of incompatibility almost immediately. What you are calling for, if you’ll forgive the repetition, is a deliberate contravention of fundamental, international human rights.

And I wonder whether you are aware of this, as I am sure this is not the effect that you intend. As I said at the outset, we are aiming for the same things. Fairness to witnesses and fairness to defendants. Key to that, to return to where I opened, is openness, honesty and clarity of purpose when discussing sensitive, potentially inflammatory matters of public policy. I fear that your letter represents a heady rush to Do Something, without ample consideration of what that something should be, or even, upon calm reflection, whether it is needed. I’m not saying that the law is perfect, and there may well be scope for sensible reform. What you have proposed, with respect, is not it. Your letter suggests that you have not taken time to consider why the law operates in the way that it does, and the wide-ranging implications of placing further restrictions on defendants adducing relevant evidence in their defence. “The easiest way”, as you call it, may not be a fair, or even lawful, way. I fear that, in the noble endeavour to safeguard the welfare of complainants, you have disregarded entirely the interests of the accused, some of whom, we must never forget, are wholly innocent. They deserve protection too.

I would urge you all, please, to read the case law I have set out. Please read the legislation. And please review your suggestion to the Attorney General, having reflected on the operation of the law as it is, not how you assume it to be. This is an emotive topic that inspires understandably raw passion in campaigners, but for that reason it is all the more pressing that cool heads, particularly in Parliament, prevail.

Yours sincerely,

The Secret Barrister

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