A, R v.

Factual and Procedural Background

The Defendant was due to be tried in The City Crown Court for rape said to have occurred in the early hours of 14 June 2000. He contended that sexual intercourse was consensual and, alternatively, that he honestly believed the complainant consented. Prior to trial, counsel sought leave to cross-examine the complainant and to adduce evidence of an alleged three-week sexual relationship between them. At a preparatory hearing the trial judge (Judge [Last Name]) refused leave, holding that s 41 of the Youth Justice and Criminal Evidence Act 1999 barred the evidence except, mistakenly, as to an intercourse episode with a third party on the night in question.

The Defendant appealed under s 35 of the Criminal Procedure and Investigations Act 1996. The Court of Appeal (Criminal Division) allowed the appeal in part, ruling that the evidence was admissible on the issue of the Defendant’s belief in consent, but inadmissible on the issue of actual consent. Concerned that excluding such evidence might breach the fair-trial guarantee in Article 6 of the European Convention on Human Rights, the Court certified a question of general public importance and granted the Crown (Appellant) leave to appeal to the House of Lords. The Secretary of State intervened because similar issues were pending in numerous other prosecutions.

Legal Issues Presented

1. Whether evidence of a prior sexual relationship between Defendant and complainant may be relevant to the issue of consent and, if excluded by s 41 of the 1999 Act, would contravene the Defendant’s right to a fair trial under Article 6.
2. How s 41 should be interpreted in light of the interpretative obligation in s 3 of the Human Rights Act 1998 to secure compatibility with Convention rights.

Arguments of the Parties

Appellant’s (Crown) Arguments

• Section 41 validly balances complainant protection and fair-trial rights; prior sexual history with the Defendant is generally irrelevant to consent and remains admissible for the limited purpose of the Defendant’s belief in consent.
• Any potential unfairness is mitigated because such evidence can usually be introduced under s 41(3)(a) on the issue of belief.
• The Court of Appeal’s suggestion that a limiting jury direction might create an unfair trial was misplaced.

Respondent’s (Defendant) Arguments

• The complete exclusion of evidence of a recent consensual sexual relationship prevents the jury from hearing material central to the defence of consent and therefore violates Article 6.
• Section 41 should be “read down,” or if necessary declared incompatible, to allow admission of genuinely probative evidence where exclusion would endanger trial fairness.

Intervenor (Secretary of State) Arguments

• Parliament enjoyed a discretionary area of judgment; s 41 was modeled on comparative “rape-shield” regimes and pursues a legitimate objective of dispelling discriminatory myths.
• Unfairness is rare because evidence can enter via belief-in-consent or rebuttal gateways; any wider reading risks re-opening intrusive questioning Parliament meant to stop.

Table of Precedents Cited

Court's Reasoning and Analysis

All five Law Lords (Judge Slynn, Judge Steyn, Judge Hope, Judge Clyde and Judge Hutton) delivered concurring opinions. The analytical steps were:

• Statutory breadth: On its face s 41(1)-(3) imposes a blanket prohibition that could bar probative defence evidence.
• Fair-trial touchstone: Article 6 fairness is absolute; exclusion of evidence central to a defence risks an unsafe conviction.
• Proportionality enquiry: Parliament’s goal of dispelling “twin myths” is legitimate, but measures must not be more restrictive than necessary.
• Gateway (3)(b): Phrase “at or about the same time” is necessarily narrow; cannot be stretched to weeks.
• Gateway (3)(c): Although linguistically strict, it is less precise. Applying s 3 of the Human Rights Act 1998, the House read the paragraph so that evidence or questioning must be admitted where it is so relevant to consent that exclusion would endanger trial fairness. The words “so similar” and “not a coincidence” were construed flexibly, focusing on logical relevance rather than striking similarity.
• Rejection of complete exclusion: A blanket bar would entail legislative “over-kill” and could compel a declaration of incompatibility; reading down avoids that outcome.
• Protective balance preserved: Trial judges retain discretion to refuse humiliating or credibility-attacking questioning; only demonstrably relevant, necessary evidence passes through.

Holding and Implications

Appeal dismissed. The certified question is effectively answered as follows: prior sexual behaviour between Defendant and complainant may be relevant to consent, and s 41, properly construed under s 3 of the Human Rights Act, allows its admission whenever necessary to secure a fair trial.

Practical implications:

• Trial judges must apply the revised test articulated by the House: admit evidence under s 41(3)(c) if excluding it would jeopardise Article 6 fairness, while still protecting complainants from irrelevant or degrading questioning.
• The decision avoids a formal declaration of incompatibility and preserves the legislative framework, but materially widens the circumstances in which defence evidence of a prior relationship can be led.
• The case was remitted to the trial judge to reconsider the Defence application in light of this interpretation.