QUESTION 1

Word Count: 1375

The Heilbron Advisory Group’s Report stated, “Unless there are some restrictions,
questioning can take place which does not advance the cause of justice but puts the woman
on trial.”1 This is certainly true, as the law of admissibility of sexual history evidence has
been steeped in controversy for the way it dictates trials of rape. The law on admissibility of
such evidence has evolved from the Sexual Offences (Amendment) Act 1976 (SOAA) 2 to
currently the Youth Justice and Criminal Evidence Act 1999 (YJCEA), 3 yet the adoption of
the statute by common law has been criticized. Thus, this essay will critically analyse the law
on admissibility of sexual history by discussing how courts interpret YJCEA and whether its
objective is achieved.
Common law rules developed in the 19 th century considered a complainant’s sexual
history relevant to the issue of consent and credibility. 4 Courts relied on the complainants’
promiscuity or professions, such as prostitution, to diminish their credibility and argue that
there is an increased probability that intercourse was consensual, as seen in Holmes5 and
Cargill.6 These troubling approaches were criticized by the Heilbron Report, 7 resulting in the
Parliament introducing s.2(1) SOAA, prohibiting the admission of sexual history with third-
parties but holding sexual history with the defendant as admissible. S.2(1) was not entirely
incompetent; Viola8 showcases how courts began to disallow questions pertaining solely to
credit. Brown9 and Barton10 followed Viola,11 where evidence showing that the complainant
enjoyed “casual sex” with men, and the complainant’s alleged promiscuity, respectively, were
held inadmissible. However, criticism followed s.2(1) too. Commentators such as Kibble, 12
Temkin,13 and McColgan14 regarded s.2(1) as an “absolute failure” in protecting complainants
as they were still facing demeaning questions concerning their sexual past during trials. Thus,
YJCEA, specifically s.41,15 was enacted, expanding the scope of statutory protection. The
impact of s.41 will be discussed further.
S.41(1) prohibits the admission of any sexual history of the complainant as evidence,
with four exceptions where admissibility may be allowed – if consent is not the issue, 16
1
Heilbron Advisory Group, Report of the Advisory Group on the Law of Rape, Cm 6352 (HMSO, 1975), para
91.
2
Sexual Offences (Amendment) Act 1976.
3
Youth Justice and Criminal Evidence Act 1999.
4
Neil Kibble, ‘The relevance and admissibility of Prior Sexual History with the Defendant in Sexual Offence
Cases’ (2001) 32 L. Cambrian Rev 27; Jennifer Temkin, Rape and the Legal Process (2nd edn, OUP 2002) 196.
5
R v Holmes and Furness (1871) 12 Cox CC 137.
6
CCR R v Cargill (1913) 8 Cr App R 224, CA.
7
Report of the Advisory Group on the Law of Rape (n 1).
8
R v Viola [1982] 1 WLR 1138, CA.
9
R v Brown (1989) 89 Cr App R 97, CA.
10
R v Barton (1987) 85 Cr App R 5, CA.
11
Viola (n 8).
12
Neil Kibble, ‘The Sexual History Provisions: Charting a Course Between Inflexible Legislative Rules and
Wholly Untrammelled Judicial Discretion?’ [2000] Criminal Law Review 274, 275–6.
13
Jennifer Temkin, ‘Sexual History Evidence—the Ravishment of Section 2’ [1993] Crim Law Review 3
14
Aileen McColgan, ‘Common Law and the Relevance of Sexual History Evidence’ (1996) 16 Oxford Journal
of Legal Studies 275.
15
YJCEA 1999, s 41.
16
ibid, s 41(3)(a).
sexual behaviour alleged to have taken place at or around the same time, 17 where past sexual
behaviour is unreasonably similar to the complainant’s behaviour during the rape that it
cannot be a coincidence,18 and to rebut sexual history evidence adduced by the prosecution. 19
It also prohibits cross-examination by the accused. 20 S.41, at least on a surface level, protects
complainants. The trial judge, in Y,21 ruled that since YJCEA came into force, the
complainant could not be questioned about her sexual history with the defendant. However,
issues arose when, on appeal, Rose LJ argued that it is “common sense” that a person is
“more likely” to consent during the alleged rape to someone they have sexual history with,
compared to a stranger.22 This can be problematic. Just because the complainant is “likely” to
consent because they have sexual history does not mean they “did” consent on the occasion.
A similar issue arose in A,23 where the accused wanted to cross-examine the complainant
regarding alleged previous sexual relations with him. The appeal was allowed, with Lord
Steyn’s reasoning that it is a matter of “common sense” that prior sexual relationships
between the complainant and defendant may be relevant to the issue of consent as it may
throw light on the complainant’s state of mind. Although he acknowledged that each decision
to engage in intercourse is afresh, his following statement, that the prior relationship “may be
relevant to what decision was made” on the occasion, 24 seems contradictory. To further
strengthen their arguments, their Lordships concluded that the sexual relationship was so
relevant to the issue of consent that excluding it would endanger the defendant’s right to a fair
trial under Art. 6.25 This decision will be analysed regarding YJCEA’s impact.
At face value, the judgement of A26 seems to attempt to balance the rights of the
defendant to a fair trial at the expense of the protection of complainants as vulnerable
witnesses. Firstly, both Lord Steyn in A27 and Rose LJ in Y28 use the term “common sense” as
a justification for admitting sexual history and attempting to establish that it is so relevant to
the issue of consent. However, is this assumption correct? Research by the Home Office 29
contradicts this assumption and concludes that the sexual behaviour of average adult women
makes it highly common for rape to happen by someone they have sexual relations with.
Furthermore, it is obvious that during rape trials, information of the complainant and
defendant knowing one another or of a relationship will be apparent, so what is the basis of
the reasoning that their sexual history is, one, so relevant to the issue of consent, and two,
will prevent a fair trial for the defendant if not admitted, that common law is willing to invite
questions about the credibility of complainants? One can also argue that the Lord’s
understanding of ‘common sense’ is derived from societal norms of right and wrong, 30 as
Lord Steyn stated that ordinary people would find the exclusion of such evidence “very
17
ibid, s 41(3)(b)
18
ibid, s 41(3)(c).
19
ibid, s 41(5).
20
ibid, s 34.
21
R v Y [2001] Crim L.R. 389.
22
ibid at [10].
23
R v A (No 2) [2002] 1 AC 45.
24
ibid at [31].
25
Human Rights Act 1998, art. 6.
26
A (n 23).
27
ibid.
28
Y (n 2).
29
L. Kelly, J. Lovett, L. Regan, ‘A gap or a chasm? Attrition in reported rape cases’ Home Office Research,
Development and Statistics Directorate 293 (February 2005).
strange,”31 rather than relying on factual evidence to justify their claims of relevance.
Certainly, consent can even be revoked during intercourse, 32 and just because it was initiated
with consent, the complainant is not “more likely” to continue granting it. Consent is one’s
free choice, subject to change however many times. Thus, claiming that sexual history with
the defendant is so relevant to the issue of consent is arguably false, and admitting sexual
history as evidence, even with the defendant, merely invites the defence to tarnish the
complainant’s reputation and credibility, resulting in the jury’s bias. For offences such as
rape, convictions should be solely based on facts, not on a character-based verdict, or mere
assumptions that if complainants had consensual intercourse with defendants previously, they
are “more likely” to consent during the alleged rape. Thus, it is apparent that the exceptions
under s.41 YJCEA are being interpreted by common law in a way that majorly allows sexual
history into evidence, and is defeating the mere purpose of YJCEA – to ensure complainants’
protection. This raises crucial questions regarding the impact of YJCEA and whether
common law is truly utilizing it to protect complainants of sexual history or using the
exceptions and Art. 633 as a means to justify complainants being harassed in the trials.
However, not every case of admitting sexual history under s.41’s exceptions is
controversial, as in certain circumstances, it is a strong indicator of both the defendant’s
innocence and the truthfulness of the complainant’s accusations. In Soroya,34 sexual history
was admitted to show that she was not a virgin but had told the defendant so in hopes that it
would prevent his assault on her. Contrarily, in Evans,35 after the defendant’s conviction, two
men described their sexual relations with the complainant, one before the alleged rape and
one after, showcasing that the complainant’s behaviour was so similar to when the alleged
rape occurred that it could not be reasonably explained as a coincidence. Also, in F,36 where
the complainant accused her mother’s boyfriend of raping her and subsequently becoming
pregnant, the court allowed questions regarding her sexual history, including notes from her
doctor confirming that the pregnancy was with the complainant’s boyfriend. This analysis
shows that not the entirety of common law is, perhaps, abusing the discretion given by s.41.
Yet, it must be noted that if these exceptions are applied to potentially every case, it indicates
that little emphasis is being put on the strict rule of inadmissibility of sexual history.
In conclusion, evidently, the common belief during SOAA was that the complainant’s
sexual history with the defendant is likely to prove that she consented during the alleged rape.
Although certain cases rejected this belief, the majority still based their judgments aligning
with it. YJCEA was enacted to prevent the demeaning treatment of complainants during
sexual assault trials; however, the analysis shows that common law used the exceptions of
s.41 to still allow sexual history as evidence and continue the harassment of complainants and
diminish their credibility. Of course, this is not true for every case, but yet again, the majority
follows the same approach. Thus, it can be said that YJCEA failed to protect complainants of

30
Georgina Firth, ‘The Rape Trial and Sexual History Evidence - R v A and the (Un)Worthy Compliant’ (2006)
57 N Ir Legal Q 442.
31
Viola (n 8) at [10].
32
R v Kaitamaki [1985] AC 147.
33
HRA 1998, art. 6.
34
R v Soroya [2006] EWCA Crim 1884.
35
R v Chedwyn Evans [2012] EWCA Crim 2559.
36
R v F [2008] EWCA Crim 2859.
sexual offences from the very thing it was aimed to offer protection from – admitting sexual
history and allowing reputation damage during trials.
 BIBLIOGRAPHY
Primary Sources
Statutes
Human Rights Act 1998
Sexual Offences (Amendment) Act 1976
Youth Justice and Criminal Evidence Act 1999
Cases
CCR R v Cargill (1913) 8 Cr App R 224, CA
R v A (No 2) [2002] 1 AC 45
R v Barton (1987) 85 Cr App R 5, CA
R v Brown (1989) 89 Cr App R 97, CA
R v Chedwyn Evans [2012] EWCA Crim 2559
R v F [2008] EWCA Crim 2859
R v Holmes and Furness (1871) 12 Cox CC 137
R v Kaitamaki [1985] AC 147
R v Soroya [2006] EWCA Crim 1884
R v Viola [1982] 1 WLR 1138, CA
R v Y [2001] Crim L.R. 389

Secondary Sources
Books
Roberts P and Zuckerman A, Roberts and Zuckerman’s Criminal Evidence (3rd edn, OUP
2022)
Temkin J, Rape and the Legal Process (2nd edn, OUP 2002)
Journal Articles
Aileen McColgan, ‘Common Law and the Relevance of Sexual History Evidence’ (1996) 16
Oxford Journal of Legal Studies 275
Georgina Firth, ‘The Rape Trial and Sexual History Evidence - R v A and the (Un)Worthy
Compliant’ (2006) 57 N Ir Legal Q 442
Jennifer Temkin, ‘Sexual History Evidence—the Ravishment of Section 2’ [1993] Crim Law
Review 3
Neil Kibble, ‘The relevance and admissibility of Prior Sexual History with the Defendant in
Sexual Offence Cases’ (2001) 32 L. Cambrian Rev 27
Neil Kibble, ‘The Sexual History Provisions: Charting a Course Between Inflexible
Legislative Rules and Wholly Untrammelled Judicial Discretion?’ [2000] Criminal Law
Review 274
Reports
Heilbron Advisory Group, Report of the Advisory Group on the Law of Rape, Cm 6352
(HMSO, 1975)
Kelly L, Lovett J, Regan L, ‘A gap or a chasm? Attrition in reported rape cases’ Home Office
Research, Development and Statistics Directorate 293 (February 2005)
QUESTION 2
Word Count: 1372
The issues concern identification and character evidence. Bernadette will be advised
on them accordingly.
Identification
Firstly, Bernadette must be known and available. S.3.1A 37 considers a suspect
‘known’ if sufficient information to establish involvement in the offence exists. ‘Available’
means he is available to take part in video, parade or group identification. 38 Upon application,
Bernadette is known, but it is unclear if she was available to take part in identification means
set out in s.3.1A. Thus, according to s.3.21, the officer must make arrangements for video
identification.39 But it is unclear whether he did. Prosecution can argue that under s.3.12(ii),
formal identification is not required as it is undisputed that Maureen knows Bernadette, and
claims to have seen her commit the crime.40 Still, Bernadette is known, but it is unclear
whether identification requirements under s.3 were followed.
The next issue is the strength of identification. CCTV is considered the best form of
identification,41 but, as CCTV footage is unavailable, Maureen’s identification through
Facebook will be discussed. Part C governs identification by social-media, requiring social-
media images to be presented to suspects or their solicitors. 42 As Bernadette contested the
identification, arguably, it was presented to her. The NVVIS Guidelines 43 also hold social-
media identification admissible but require formal identification according to Code D.
Common law also admits social-media identification. In LT,44 the court admitted a photo on
Facebook identified by the complainants. McGill45 also accepted the victims’ identification of
assailants through Facebook. Thus, upon application, Maureen’s identification of Bernadette
through Facebook is likely to be admissible. However, the facts suggest that the prosecution’s
case solely relies on the correctness of the social media identification, which Bernadette
alleges is mistaken. Thus, the judge is required to give Turnbull warnings.46 These warnings
refer to possibilities that mistaken witnesses can be convincing but still mistaken, seen in
Weeder.47 The direction must be to closely examine the circumstances in which the
identification was made and any weaknesses that appear. Upon application, upon the
Turnbull warnings, the jury may not convict Bernadette. Firstly, on the day of the stealing,
Maureen did not see the person’s face, just the limited-edition Taylor Swift crewneck. This is
important as Gayle48 states mere descriptions of the culprit or his clothing are not
identification evidence. Secondly, although the crewneck being limited-edition could prove
that it must be Bernadette, this is still a weakness as it is unknown how many people in the
city own it. The only other description was the culprit was a short brunette. Certainly, this
37
Home Office, Code D Revised Code of Practice for the identification of persons by Police Officers (TSO
2017).
38
ibid, s 3.1A.
39
ibid, s 3.21.
40
ibid, s. 3.12(ii).
41
Ian Dennis, The Law Of Evidence (7th edn, Thomson Reuters 2020) 296.
42
Home Office, Code D Revised Code of Practice for the identification of persons by Police Officers (TSO
2017), s 3.40.
43
Guidelines by the National Visual and Voice Identification Strategy Group (2017).
44
R v LT [2019] EWCA Crim 58.
45
Alexander and McGill [2013] 1 Cr App R 26.
46
R v Turnbull [1977] QB 244.
47
R v Weeder (Thomas Henry) (1980) 71 Cr App R 228.
48
R v Gayle [1999] 2 Cr App R 130, 135.
cannot be a strong identification as hair colour and height are weak descriptions. Since it is
uncertain, based on the facts, that formal identification was conducted by the police, as
required by the NVVIS Guidelines,49 Code D,50 and Forbes,51 it is likely that evidence will be
inadmissible under s.78 PACE.52
Character
The issues concern bad and good characters of the defendant. Before CJA, defendants
had to give evidence of general reputation.53 However, s.99 has abolished the common law
rule of admissibility of bad character evidence,54 yet evidence of a person’s reputation is
admissible to prove good or bad character.55 According to s.98, bad character is evidence of a
person’s misconduct or disposition towards misconduct.56 There are two exceptions to this
definition – evidence which has to do with the alleged facts of the offence, 57 and evidence of
misconduct in connection with the investigation or prosecution. 58 S.112 defines ‘misconduct’
as the commission of an offence or other reprehensible behaviour, 59 which can be previous
convictions,60 but need not be, according to Edwards.61 Renda62 expands on misconduct as to
whether the conduct expressed ‘some element of culpability or blameworthiness.’ Upon
application, Bernadette falsely claimed that she volunteers for the local food bank. According
to s.98(b),63 this is evidence of misconduct in connection with the prosecution and can be
admitted as bad character evidence. Furthermore, she was cautioned for writing graffiti and
convicted for being drunk-and-disorderly; this may amount to the commission of an offence
and reprehensible behaviour, falling under s.112’s definition of misconduct, 64 and qualifying
as bad character. Furthermore, Bernadette accused Maureen of falsely making up the claim
for insurance, which can also amount to reprehensible behaviour and, thus, also falls under
bad character.
Whether bad character evidence is admissible will be discussed. The exceptions to the
general rule of inadmissibility are stated in s.101. 65 S.101(1)(f) admits evidence to correct
false impressions given by defendants.66 Under this gateway, evidence negating Bernadette’s
claims of working at a food bank and having impeccable reputation will be admissible. Her
previous convictions may also be admissible under this exception as Bernadette’s false
impression can be refuted by them. However, the judge must rule whether a false impression
has occurred, as seen in Renda.67 If he finds that the assertion is unspecific and insubstantial,

49
Guidelines by the National Visual and Voice Identification Strategy Group (2017).
50
Home Office, Code D Revised Code of Practice for the identification of persons by Police Officers (TSO
2017), s 3.21.
51
R v Forbes [2000] UKHL 66.
52
Police and Criminal Evidence Act 1984, s 78.
53
R v Rowton (1865) 11 LT 745.
54
Criminal Justice Act 2003, s 99.
55
ibid, s 118(2).
56
ibid, s 98.
57
ibid, s 98(a).
58
ibid, s 98(b).
59
ibid, s 112.
60
Paul Roberts and Adrian Zuckerman, Roberts and Zuckerman’s Criminal Evidence (3rd edn, OUP 2022) 801.
61
R v Edwards (Stewart) [2006] 1WLR 1524; R v Weir [2006] 1 WLR 1885.
62
R v Renda [2005] 1 Cr App R 24.
63
CJA 2003, s 98(b).
64
ibid, s 112.
65
CJA 2003, s 101.
66
ibid, s 101(1)(f).
67
Renda (n 62).
then previous convictions may not be admitted, based on Ovba.68 It is likely that the judge
will admit the evidence as Bernadette clearly gives a false impression. Furthermore, s.101(1)
(g) admits evidence of bad character if the defendant attacks another person’s character.
Singh69 states that evidence of significantly different convictions is admissible to show the
jury what kind of person the defendant is. Upon application, as Bernadette falsely accused
Maureen, evidence of her previous convictions can be admissible under this exception too.
However, when she was cautioned for writing graffiti, she was sixteen. This may be
inadmissible as courts are unlikely to admit juvenile offences as bad character evidence; they
are of the opinion that children mature.70 However, her conviction in 2019 is likely to be
admitted.
If a safeguard applies, character evidence under these exceptions will become
inadmissible. S.101(3) states that evidence under s.101(1)(g) will be inadmissible if, upon
defendant’s application, it appears that admission will have an adverse effect on the fairness
of proceedings.71 Thus, Bernadette can apply for the same. Then, the court must consider the
time between the previous convictions and the current offence according to s.101(4). 72 Upon
application, the courts may not admit the conviction as evidence as it occurred six years ago,
which is a substantial time-period. Additionally, under s.110, the judge must give reasons for
his ruling.73 Yet, as there are no safeguards for evidence admitted under s.101(1)(f), her
conviction will be admitted. Thus, the judge must give instructions to the jury about
propensity, credibility or both. Highton74 explains that evidence depends on relevance rather
than the gateway. It can be used for both propensity and credibility, according to Campbell;75
the judge’s instructions should clarify where it is relevant. However, DPU76 and Clarke77
showcase that evidence admitted under s.101(1)(g) relates to credibility and not propensity;
thus, the jury should be informed of the same. Upon application, since the previous
conviction is different from the present one, propensity to commit the offence may not be
found, but propensity of untruthfulness might.
The final issue is the judge asking Bernadette to remove the lapel badge. It can be
evidence of good character. Rowton78 and Redgrave79 define good character as general
reputation showing good character. Thus, Bernadette regularly giving blood may qualify as
having good character. Hunter80 established two categories of good character – absolute and
effective. The latter applies here as Bernadette has previous convictions and cautions that are
old, minor and irrelevant presently. The judge, by asking her to remove the badge, breached
s.118(1) as it holds evidence of reputation of good character admissible. 81 However, the judge
decides whether the defendant has effective good character and, if so, must give directions on
credibility and propensity. Vye82 and Aziz83 expanded on them and stated that if the accused
68
R v Ovba [2015] EWCA Crim 725.
69
R v Singh [2007] EWCA Crim 2140.
70
Mike Redmayne, ‘The Relevance of Bad Character’ (2002) 61(3) Cambridge Law Journal 684.
71
CJA 2003, s 101(3).
72
ibid, s 101(4).
73
ibid, s 110(2)(b).
74
R v Highton [2005] 1 WLR 3472.
75
R v Campbell [2007] 1 WLR 2798.
76
R v D.P.U. [2012] 1Cr App R 8.
77
R v Clarke [2017] EWCA Crim 2059.
78
R v Rowton (1865) Le&Ca 520, CCA.
79
R v Redgrave (1982) 74 Cr App R 1.
80
R v Hunter [2015] 2 Cr App R 116(9).
81
CJA 2003, s 118(1).
82
R v Vye [1993] 3 All ER 241.
83
R v Aziz [1996] AC41.
testifies, the direction should be that evidence is relevant to credibility and that it has
probative value relating to the issue of guilt, that a good-charactered person is unlikely to
commit offences. Upon application, Bernadette’s lapel badge may prove good character, and
the jury, upon instruction, is likely to find her a credible person and unlikely to find
propensity to commit the crime. However, by preventing the jury from seeing the badge, the
judge breached s.118(1).84
In conclusion, the identification evidence may be inadmissible as it is unclear whether
formal identification procedures were followed. Bad character evidence may be admitted, but
jury instructions are required. Good character evidence should be admissible, but the judge
erred by asking Bernadette to remove the badge.

84
CJA 2003, s 118(1).
 BIBLIOGRAPHY
Primary Sources
Statutes
Criminal Justice Act 2003
Police and Criminal Evidence Act 1984
Cases
Alexander and McGill [2013] 1 Cr App R 26
R v Aziz [1996] AC41
R v Campbell [2007] 1 WLR 2798
R v Clarke [2017] EWCA Crim 2059
R v D.P.U. [2012] 1Cr App R 8
R v Edwards (Stewart) [2006] 1WLR 1524
R v Forbes [2000] UKHL 66
R v Gayle [1999] 2 Cr App R 130, 135
R v Highton [2005] 1 WLR 3472
R v Hunter [2015] 2 Cr App R 116(9)
R v LT [2019] EWCA Crim 58
R v Ovba [2015] EWCA Crim 725
R v Redgrave (1982) 74 Cr App R 1
R v Renda [2005] 1 Cr App R 24
R v Rowton (1865) 11 LT 745
R v Rowton (1865) Le&Ca 520, CCA
R v Singh [2007] EWCA Crim 2140
R v Turnbull [1977] QB 244
R v Vye [1993] 3 All ER 241
R v Weeder (Thomas Henry) (1980) 71 Cr App R 228
R v Weir [2006] 1 WLR 1885
Command Papers
Guidelines by the National Visual and Voice Identification Strategy Group (2017)
Home Office, Code D Revised Code of Practice for the identification of persons by Police
Officers (TSO 2017)

Secondary Sources
Books
Dennis I, The Law Of Evidence (7th edn, Thomson Reuters 2020)
Roberts P and Zuckerman A, Roberts and Zuckerman’s Criminal Evidence (3rd edn, OUP
2022)
Journal Articles
Redmayne M, ‘The Relevance of Bad Character’ (2002) 61(3) Cambridge Law Journal 684