Restriction on
evidence or questions about complainant's sexual
history.
41. - (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.
(2) The court may give leave in
relation to any evidence or question only on an application made by or on
behalf of an accused, and may not give such leave unless it is satisfied-
(a) that subsection (3) or
(5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if
the evidence or question relates to a relevant issue in the case and either-
(a) that issue is not an
issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar-
(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
(ii) to any other sexual
behaviour of the complainant which (according to such evidence) took place at
or about the same time as that event,
that the similarity cannot
reasonably be explained as a coincidence.
(4) For the purposes of
subsection (3) no evidence or question shall be regarded as relating to a relevant
issue in the case if it appears to the court to be reasonable to assume that
the purpose (or main purpose) for which it would be adduced or asked is to
establish or elicit material for impugning the credibility of the complainant
as a witness.
(5) This subsection applies if
the evidence or question-
(a) relates to any evidence
adduced by the prosecution about any sexual behaviour of the complainant; and
(b) in the opinion of
the court, would go no further than is necessary to enable the evidence adduced
by the prosecution to be rebutted or explained by or on behalf of the accused.
(6) For the purposes of
subsections (3) and (5) the evidence or question must relate to a specific
instance (or specific instances) of alleged sexual behaviour on the part of the
complainant (and accordingly nothing in those subsections is capable of
applying in relation to the evidence or question to the extent that it does not
so relate).
(7) Where this section applies
in relation to a trial by virtue of the fact that one or more of a number of
persons charged in the proceedings is or are charged with a sexual offence-
(a) it shall cease to apply
in relation to the trial if the prosecutor decides not to proceed with the case
against that person or those persons in respect of that charge; but
(b) it shall not cease
to do so in the event of that person or those persons pleading guilty to, or
being convicted of, that charge.
(8) Nothing in this section
authorises any evidence to be adduced or any question to be asked which cannot
be adduced or asked apart from this section.
Interpretation
and application of section 41.
42. - (1) In section 41-
(a) "relevant issue in
the case" means any issue falling to be proved by the prosecution or
defence in the trial of the accused;
(b) "issue of consent" means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented);
(c) "sexual
behaviour" means any sexual behaviour or other sexual experience, whether
or not involving any accused or other person, but excluding (except in section
41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the
event which is the subject matter of the charge against the accused; and
(d) subject to any order made under subsection (2), "sexual offence" shall be construed in accordance with section 62.
(2) The Secretary of State may
by order make such provision as he considers appropriate for adding or
removing, for the purposes of section 41, any offence to or from the offences
which are sexual offences for the purposes of this Act by virtue of section 62.
(3) Section 41 applies in
relation to the following proceedings as it applies to a trial, namely-
(a) proceedings before a
magistrates' court inquiring into an offence as examining justices,
(b) the hearing of an
application under paragraph 5(1) of Schedule 6 to the Criminal Justice Act 1991
(application to dismiss charge following notice of transfer of case to Crown
Court),
(c) the hearing of an
application under paragraph 2(1) of Schedule 3 to the Crime and Disorder Act
1998 (application to dismiss charge by person sent for trial under section 51
of that Act),
(d) any hearing held, between conviction and sentencing, for the purpose of determining matters relevant to the court's decision as to how the accused is to be dealt with, and
(e) the hearing of an
appeal,
and references (in section 41 or this section)
to a person charged with an offence accordingly include a person convicted of
an offence.
Procedure
on applications under section 41.
43. - (1) An application for leave
shall be heard in private and in the absence of the complainant.
In this section "leave" means
leave under section 41.
(2) Where such an application
has been determined, the court must state in open court (but in the absence of
the jury, if there is one)-
(a) its reasons for giving,
or refusing, leave, and
(b) if it gives leave,
the extent to which evidence may be adduced or questions asked in pursuance of
the leave,
and, if it is a magistrates' court, must cause those matters to be entered in the register of its proceedings.
(3) Rules of court may make provision-
(a) requiring applications
for leave to specify, in relation to each item of evidence or question to which
they relate, particulars of the grounds on which it is asserted that leave
should be given by virtue of subsection (3) or (5) of section 41;
(b) enabling the court
to request a party to the proceedings to provide the court with information
which it considers would assist it in determining an application for leave;
(c) for the manner in
which confidential or sensitive information is to be treated in connection with
such an application, and in particular as to its being disclosed to, or
withheld from, parties to the proceedings.
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