The Government are committed to ensuring that victims are supported throughout the criminal justice system. This is particularly so for victims of sexual violence: a devastating and traumatic crime.
Sections 41 to 43 of the Youth Justice and Criminal Evidence Act 1999 Act came into force in 2000 and provide critical protection for complainants in sex offence cases by tightly restricting the circumstances in which the defence can introduce evidence relating to the complainant’s sexual history.
There is a general prohibition on the use of sexual history evidence by the defence in sex offence trials. There are very limited circumstances in which the law allows such evidence to be introduced, but crucially section 41 prevents the use of sexual history by the defence to discredit the complainant. The defence must make an application to the court to introduce evidence or questions of a complainant’s sexual history, which is then decided upon by the judge in that case.
The Government want to be sure that the law is working as it should, and strikes the right balance between protecting complainants and ensuring the defendant's right to a fair trial. That is why we have undertaken a study to look at how the law in this area is working in practice.
Earlier this year, the then Lord Chancellor and I asked the Crown Prosecution Service to undertake an analysis of rape cases finalised in 2016 to determine the frequency and outcome of applications, under section 41.
This study looked at 309 such cases and found that in 92% of them—the overwhelming majority—no evidence of the complainant’s sexual history was introduced by the defence. Additionally, applications to introduce such evidence were only made in 13% of these cases. These findings strongly indicate that the law is working as it should, and strikes a careful balance between the need to protect complainants and ensuring that defendants receive a fair trial, consistent with the common law and Article 6 of the European convention on human rights.
Whilst this is reassuring, we want to do more to provide vulnerable victims—and the public at large—with complete confidence in our criminal justice system. The Government are committed to ensuring that victims are treated with dignity and fairness in court. We are therefore taking additional steps to ensure the law continues to function effectively. These steps include the launch of new mandatory CPS prosecutor training and updated legal guidance; discussing with representatives of the Bar and solicitors the opportunity to improve training for criminal practitioners on section 41; a review by the Criminal Procedure Rule Committee of their rules in this area; and improved data collection.
Throughout this study we have listened to the views of victims’ groups and stakeholders, and engaged with them on raising awareness of section 41 and ensuring its effective operation. We will continue to engage with them on this issue.
Further details of the study are set out in a report that accompanies this statement. The measures we are taking are in addition to our wider work to support victims and witnesses in sexual offences cases. This wider work includes the roll-out of pre-recorded cross-examination for vulnerable witnesses in sexual offence cases, the introduction of new guidance for independent sexual violence advisers, and our commitment to publish a victims’ strategy in early 2018. The Government have also committed to publish a draft Domestic Violence and Abuse Bill and provide an additional £20 million to provide support to victims and to organisations combating domestic abuse.
Copies of the report have been laid before both Houses and the full report is available here: