The sexual history provisions in the Youth Justice and Criminal Evidence Act 1999 - A violation of the right to a fair trial?

In response to the Home Office recommendations contained in Speaking Up for Justice (1998) the Youth Justice and Criminal Evidence Act (YJCEA) 1999 in troduced a new regime for the conduct of sexual offence trials. Section 41 of the Act, which came into force on 4 December 2000, brings about dramatic changes to the rules on the admissibility of evidence of complainants' sex ual behaviour, severely restricting the discretion of trial judges to intro duce such evidence or to allow questioning concerning it. This represents a radical new departure that will fundamentally affect an accused's position at trial, Responses to section 41 have predictably been divided given the extremely sensitive nature of this area of the law of evidence and the comp lex set of social and political issues which are at stake. Many have greete d it as a long overdue reform of a system premised upon outmoded and sexist beliefs concerning women's sexual behaviour which has routinely functioned to admit prejudicial and irrelevant evidence. Others, predominantly within the legal profession, have expressed serious concerns over whether the new law is workable and the extent to which, by potentially excluding critical ly relevant evidence, it may infringe upon a defendant's right to a fair tr ial. The quality of the legislation is soon to be tested. On 26 and 27 March 200 1 the House of Lords heard an interlocutory appeal in the case of R v. A an d were asked to decide if the new provisions, by excluding previous sexual history evidence between the complainant and the defendant, contravened Art icle 6 of the European Convention of Human Rights. Their Lordships are, at the time of writing, yet to give judgment and the fate of the defendant in question, and several others whose trials have been postponed pending their decision, hangs in the balance. This article seeks to show that the new Ac t, despite being well-intentioned, does not adopt a coherent or sustainable approach to the relevance of previous sexual history evidence and the rest rictive nature of its provisions are such that genuinely relevant material will be rendered inadmissible. This creates the risk of disembodying the ca se before the jury and raises the significant possibility that miscarriages of justice will occur. As a consequence, unless the legislation can be rea d down in such a way as to reintroduce a measure of judicial discretion to admit such evidence, a declaration of incompatibility may be called for.