The Round-up: Harriet Harman and Liz Truss propose change in rape trials

28 March 2017 by Thomas Beamont

The Labour MP Harriet Harman has proposed a change in the law that would prevent rape complainants from being cross-examined in court about their sexual history.

Harman claims that the introduction of a complainant’s sexual history as evidence has “no evidential value.” Describing the practice as “outdated”, Harman said that “it’s based on the old notion that there were two sorts of women – those who were ‘easy’ and those who were virtuous – and if you were easy, you would have sex with anybody, because you were that sort of woman.”

The current law

Section 41 of the Youth Justice and Criminal Evidence Act 1999 provides that evidence relating to the sexual history of complainants in sexual offences proceedings is limited, subject to exceptions.

Courts can only give leave to introduce evidence about a complainant’s sexual history where the evidence or questions rebut evidence led by the prosecution, or where the evidence or questions relate to  relevant issue at trial, and that issue is not one of consent. If the issue is one of consent, the complainant’s alleged behaviour must have taken place at or about the same time as the alleged offence, or be so similar to the complainant’s behaviour at the time that it cannot reasonably be explained as coincidence. The Court must also must be satisfied to refuse leave would lead to the jury or court reaching an unsafe conclusion on a relevant issue. The CPS website gives an overview of the law.

Criticism of Harman’s proposal

Critics have argued that the proposed changes would amount to a breach of the defendant’s right to fair trial. This is provided for amongst other sources by Article 6 of the European Convention on Human Rights.

Matthew Scott argues that the proposal “is virtually certain to be ruled incompatible with the Article 6 right to a fair trial under the (ECHR).” The proposals wold bar a defendant from giving evidence that he and the complainant had been in a sexual relationship under any circumstances. He would no longer be entitled to rebut anything said by the defendant on this issue. Crucially for Scott, even where such a prohibition was certain to create an unfair trial, a judge would be unable to intervene.

Scott also argues that Harman’s justification for proposing the prohibition is misplaced, as sexual history evidence cannot be introduced as the law stands to create the impression that the complainant is an “easy woman.”

Judges are under a statutory duty under s.6(1) of the Human Rights At not “to act in a way which is incompatible with a Convention right.” Scott argues that the inevitable result of such a proposal would be that the trial would not take place, leading to the discontinuation of some rape trials because they cannot be conducted fairly.

The Secret Barrister provides an overview of the case law which has developed around the legislation. This was written in response to the appeal involving Ched Evans concluded last year, which also heard arguments relating to evidence of a complainant’s sexual history. He concludes that “in the noble endeavour to safeguard the welfare of complainants, you have disregarded entirely the interests of the accused, some of whom, we must never forget, are wholly innocent.”

Harman’s response

Harman justifies her proposal by arguing that the subsection which allows for the introduction of evidence of similar sexual behaviour was “intended to be used only for unusual sexual behaviour.” The Labour backbencher points to the House of Lords debate on the 1999 Act, particularly with reference to the former Attorney General Lord William’s use of the words “strikingly similar” when debating what would become that subsection in the Act. Harman’s response is essentially that Parliament never intended the exception to be so broad as it is now. The proposal simply reflects that which was always intended to be the case.

Liz Truss’ proposal

Balancing the rights of those who make an allegation of rape and those defendants who are accused of rape is evidently a difficult issue, and one which will invite on-going comment.

More or less alongside Harman’s proposal stands that of Liz Truss, Justice Secretary, that those who have made an allegation of rape be cross-examined in a pre-recorded session so as not to have give evidence directly before the jury.

The Justice Secretary’s proposals have recently come under fire from the Lord Chief Justice, Lord Thomas of Cwmgiedd. Lord Thomas claimed that Truss’s department had “misunderstood the thing completely.” He claimed that there was a widespread lack of resources at the Ministry of Justice, and the practical implications of the suggestion had not been thought through. Lord Thomas claimed that there was “a complete failure to understand the impracticalities of any of this.”

The Justice Gap carries an article by Tom Smith and Ed Johnston on Truss’s proposal. It highlights logistical issues surrounding pre-recording, as well as the risk of new issues coming to light after the recording, on which the complainant will have to be recording giving answers again. The scheme has been rolled out under a pilot in some parts of the country. Full Fact has a primer on their website debunking some myths about Truss’s proposals here.

In the courts

Al Chodor and Others: The Court of Justice of the European Union has effectively decided that the Home Office has unlawfully detained a number of individuals seeking international protection in the UK.  The case was heard by the European Union’s court, and not the European Court of Human Rights, which hears cases which require an interpretation of the European Convention on Human Rights. The CJEU found that in order to detain individuals pending their removal to another EU country to hear their asylum claim, national legislation defining the criteria must be passed. The UK lacked any such criteria. The Home Office has responded by publishing a list of criteria in new Regulations.

The Guardian reports that judges in the High Court have once again been asked to reconsider the ban on assisted dying. Noel Conway, 67, from Shrewsbury, was diagnosed with motor neurone disease in November 2014. His condition is terminal. Assisted dying is prohibited by section 2(1) of the Suicide Act 1969. The majority of the Supreme Court declined in Nicklinson in 2014 to give a declaration that the current state of the law was incompatible with article 8 of the ECHR, which guarantees the right to respect for private and family life, deciding that consideration of the issues was better left to Parliament.

The Supreme Court has this week been hearing an appeal brought by Unison concerning the fees charged for bringing an unfair dismissal claim to the employment tribunal. The fee is now set at up to £1,200. There has been a 70% decrease in the number of cases brought since the introduction of the new fee regime. The Guardian covers the story, while the hearing can be watched here.

In the news

The UK government has put the UN Human Rights Council ‘on notice’ over what it has termed the organisation’s “disproportionate focus on Israel.” The Statement, made during the 34^th session of the Human Rights Council n 24^th March, said that “a just and lasting resolution that ends the occupation and delivers peace for both Israelis and Palestinians is long overdue.” Whilst the “UK stands “fully supportive of the Human Rights Council as an international instution”, the Statement questioned why Israel was still a standing agenda item, addressed during each Council. Other regimes such as Syria engage in system human rights abuse, but were claimed not to face the same scrutiny as Israel. The Independent covers the story.

The Guardian reports that group of British MPs have claimed that the Turkish president, Recep Tayyip Erogan,  is using the failed attempt at a military coup of summer 2016 t suppress human rights. The Commons foreign affairs select  committee has accused the president of an unnecessary and disproportionate response, which puts into question the referendum due to be held next month too extend Erdogan’s presidential powers. Questioning freefdom of speech in the country, MPs described a “fundamental intolerance of alternative narratives in Turkey, with the government broadly suppressing, discrediting or punishing those who contradict its authorised accounts of sensitive events.”

by Thomas Beamont