This post has been contributed by Ms Amber Marks, Module Convenor for Evidence.
The knotty issue of sexual history evidence is back in the public limelight on account of the high profile case of footballer Chris Evans . Legal experts and campaigners fear that this case heralds a return to the ‘bad old days’ [https://www.theguardian.com/commentisfree/2016/oct/17/courts-judge-rape-sexual-history-ched-evans-case]
before the introduction of section 41 of the Youth Justice and Criminal Evidence Act.: The government has announced [https://www.theguardian.com/society/2016/nov/17/review-of-law-on-case-evidence-announced-after-ched-evans-retrial] a review of the use of rape complainants’ sexual history during court cases in the wake of concerns that the acquittal of footballer Ched Evans could deter women from reporting attacks.
Evans, who was found guilty of rape in 2012, had his conviction quashed in April [https://www.judiciary.gov.uk/judgments/r-v-chedwyn-evans/]. At the heart of the successful appeal [https://www.theguardian.com/society/2016/oct/14/campaigners-fear-evans-case-will-stop-women-reporting]were fresh statements from two young men who described their sexual relations with the complainant. The appeal court ruled evidence relating to the complainant’s sexual history could be included in the re-trial.
Vera Baird, the former solicitor general, writing in the Guardian distinguished Evans’ case from the case of R. v. T  2 CR App R 551. Choo discusses R v T in his textbook on Evidence at pages 397 and 398. In R v T the defendant and complainant had had a two-year sexual relationship, went inside a metal climbing frame in a playground where sexual activity took place. At trial, for offences of rape, indecent assault and false imprisonment, D was refused leave to ask the complainant questions in relation to their previous sexual behaviour, including consensual sexual activity within the climbing frame 3–4 weeks before; the fact that the same sexual position had been adopted by the complainant on that occasion; and that oral sex had occurred during the relationship. The Court of Appeal allowed the appeal. The trial judge had considered the wrong section, had his attention been drawn to s 41(3)(c)(i), he would have ruled that evidence as being admissible. It was “probable” that there was no requirement of a temporal link in the case of 41(3) (c)(ii). Section 41(3)(b) contains a temporal limit, but the core of s.41(3) (c) is about inexplicable coincidence in the sexual behaviour either (i) in the event or (ii) at or about the time.
Vera Baird writes that the case of R v T is very different to the case of Evans: “In Evans’ case, the Court of Appeal decided it “relevant and admissible” that the woman had had separate sexual encounters with two men, around the time of the alleged rape. On each occasion she had consumed a lot of alcohol, and had been enthusiastic, directing sexual events. She used similar words calling for more vigour from the male partner, and, once with each man, used a particular, though not uncommon, sexual position. Evans said she behaved similarly with him. Since this was presumably her typical conduct in consensual sex, it supported his case that she’d consented with him. But by any evaluation, these “similarities” are of a significantly lower scale than in the case of the climbing frame in terms of proving typical behaviour.”
The sexual history evidence was admitted at Evans’s retrial and he was acquitted. According to Vera Baird, the only difference between the first and the second trial, was that in the second trial
“called some men to throw discredit on [the woman’s] sexual reputation. That, I think, is pouring prejudice, which is exactly what used to happen before the law in 1999 stopped the admission of previous sexual history in order to show consent. We’ve gone back, I’m afraid, probably about 30 years.”
Section 41 (3) is a peculiar gateweay. It is the same gateway that was at the heart of R v A  UKHL 25