R v A (No.2)  UKHL 25;  1 AC 45
SEXUAL OFFENCES – RAPE – CONSENT – EVIDENCE OF COMPLAINANT’S SEXUAL HISTORY – RIGHT TO FAIR TRIAL
The defendant (D) was charged with rape. In his defence he claimed that the complainant had consented to the sexual intercourse which formed the basis of the charge. D sought leave under s.41 of the Youth Justice and Criminal Evidence Act 1999 to adduce evidence and to ask questions relating to an alleged consensual sexual relationship between himself and the complainant over the preceding three weeks. D asserted on appeal that s.3 of the Human Rights Act 1998 required the court to construe s.41 in accordance with Art.6 of the European Convention of Human Rights and, if this could not be done, that a declaration of incompatibility must be issued.
The House of Lords was asked to determine whether the exclusion of evidence of the complainant’s sexual history under s.41 of the Youth Justice and Criminal Evidence Act 1999 would contravene a defendant's right to a fair trial under the Human Rights Act 1998 Sch.1 Part I and Art.6 of the ECHR.
In dismissing the appeal, the Court held that s.41(3)(c) of the 1999 Act should be construed, where necessary, by having regard to the interpretative obligation under s.3 of the 1998 Act and by giving adequate consideration to the need to protect a complainant from indignity and the possibility of humiliating questioning. Evidence of a complainant's previous sexual history could be admitted where that evidence, and the questions it raised, was so relevant to the issue of consent to omit its inclusion might prejudice the fairness of the trial. The relevance of the previous sexual experience was a matter for the trial judge to determine. On the basis of this approach it was unnecessary for the House to answer the certified question concerning compatibility with Art.6.