REGINA v RT

Factual and Procedural Background

These two appeals concern the interpretation of section 41 of the Youth Justice and Criminal Evidence Act 1999, which restricts evidence or questioning about a complainant's sexual history in sexual offence trials. Both appeals arise from preparatory hearings where defence questions to the complainants were excluded under section 41. Leave to appeal was granted by Crown Court judges recognizing the novelty of the legal question, and the appeals have been combined for a single judgment.

In the first appeal, the Appellant faces charges of indecent assault and rape concerning his niece, with alleged incidents occurring between 1987 and 1989 when the complainant was a child. The defence sought to question the complainant on her failure to disclose these allegations during earlier investigations in 1987 and 1990, when she mentioned other sexual abuse but not by the Appellant. The Crown Court judge ruled that such questions were excluded by section 41 as they related to the complainant's sexual behaviour and aimed to impugn her credibility.

In the second appeal, the Appellant is charged with indecent assault of his stepdaughter in 2000. The defence wished to question the complainant about alleged past lies on sexual and non-sexual matters, including fabricated claims of rape and other conduct. The Crown Court judge similarly ruled that section 41 prevented such questioning as it related to the complainant's sexual behaviour and was intended to impugn credibility.

Legal Issues Presented

1. Whether questions about a complainant's failure to disclose alleged sexual abuse on earlier occasions constitute questions "about any sexual behaviour" under section 41 of the Youth Justice and Criminal Evidence Act 1999.
2. Whether questions about previous false statements or lies by the complainant relating to sexual matters are excluded by section 41.
3. How section 41 should be interpreted in light of the right to a fair trial under Article 6 of the Human Rights Act 1998.
4. The extent to which section 41(4) excludes evidence or questions aimed at impugning the complainant's credibility.
5. Whether questions about a third party's (e.g., a witness's) failure to mention alleged sexual abuse are excluded by section 41.

Arguments of the Parties

Appellant's Arguments (First Appeal)

• The questions sought do not concern the complainant's sexual behaviour but her past statements or failures to disclose abuse.
• The defence only wishes to show that the complainant did not mention abuse by the Appellant during earlier investigations when discussing other sexual abuse.
• Section 41 is intended to prevent questions that impugn the complainant's credibility based on sexual conduct, not to exclude relevant inconsistencies in statements.
• Excluding these questions would deny the Appellant a fair trial, contrary to Article 6 of the Human Rights Act 1998.
• The provisions of section 41 can and should be interpreted compatibly with the Convention rights.

Appellant's Arguments (Second Appeal)

• The questions are about alleged lies told by the complainant, not about her sexual behaviour as defined by the Act.
• The Act targets questions on sexual behaviour, not about falsehoods or fabricated claims.
• Excluding these questions would infringe the Appellant's right to a fair trial under Article 6.

Crown's Arguments

• In the first appeal, the Crown submits that any question involving previous sexual experience is "about" sexual behaviour and thus excluded by section 41, balancing the rights of accused and complainant.
• The Crown is concerned about questions implying the complainant's confusion about past sexual experiences, which could harm her reputation.
• In the second appeal, the Crown takes a neutral stance, acknowledging that section 41 can be read compatibly with human rights to allow questions about previous lies on sexual assaults.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by acknowledging the statutory framework of section 41 of the Youth Justice and Criminal Evidence Act 1999, which restricts evidence or questioning about a complainant’s sexual behaviour unless leave is granted under strict conditions. The Court noted that section 41(4) excludes evidence or questions aimed primarily at impugning the complainant's credibility.

The Court considered whether the proposed questions in both appeals were "about" the complainant's sexual behaviour. It drew on precedent, notably Cox (1987), to distinguish between questions about sexual behaviour itself and questions about statements made by the complainant concerning such behaviour. The Court found that questions about previous false complaints or failures to complain relate to the complainant’s statements or omissions, not to her sexual behaviour per se.

This interpretation aligns with the purpose of the 1999 Act, which is to prevent humiliating or irrelevant questioning about sexual conduct, not to exclude relevant evidence about the complainant’s credibility or the truth of allegations. The Court emphasized that a purposive approach, consistent with pre-Human Rights Act principles and reinforced by the Human Rights Act 1998 section 3(1), supports a reading of section 41 that permits such questioning when it is relevant to the defence.

The Court acknowledged the balancing exercise required between the rights of the accused to a fair trial and the complainant’s right to privacy under Article 8. It concluded that the serious nature of the charges necessitates allowing relevant questioning about previous inconsistencies or false complaints, subject to safeguards against abuse.

The Court also addressed concerns about potential prejudice arising from questioning about previous alleged false complaints. It stressed that judges must ensure a proper evidential basis exists before permitting such questions and guard against improper use that would amount to questions about sexual behaviour under the guise of false complaints.

Regarding questions about a witness's failure to mention alleged abuse, the Court noted these do not directly affect the complainant’s credibility and are not excluded by section 41(4). However, admissibility remains a matter for the trial judge.

Holding and Implications

The Court ALLOWED both appeals.

The Court held that questions about previous false complaints or failures to complain, even if they relate to sexual matters, are not automatically excluded by section 41 of the Youth Justice and Criminal Evidence Act 1999 because they concern statements made by the complainant rather than her sexual behaviour. Such questions are relevant and necessary for a fair trial, particularly where they go to the truth of the allegations rather than merely to the complainant’s credibility.

The decision clarifies the interpretation of section 41, emphasizing a purposive and human rights compatible approach that balances the accused’s right to a fair trial with the complainant’s privacy rights. It does not establish a new precedent limiting section 41 but confirms that relevant questioning about prior false complaints or inconsistencies is permissible subject to judicial control to prevent abuse.