Rape and Sexual Offences - Chapter 11: The Sexual History of Complainants, Section 41 YJCEA 1999

• The Legal Framework
• "Sexual Offence"
• Sexual Behaviour
• Proceedings to which Section 41 applies
• Procedure and time limits
• Four gateways to admissibility
  • Gateway 1 - Section 41(3)(a) Evidence or question relates to an issue which is not an issue of consent
  • Gateway 2 - Section 41(3)(b) Consent and Contemporaneity
  • Gateway 3 - Section 41(3)(c) Consent and similarity
  • Gateway 4 - Section 41(5) The Rebuttal Gateway
• Restrictions on admissibility
  • Restrictions that apply to ALL gateways
  • Restrictions relating to Section (41(3) gateway
• False Allegations
• The role of the reviewing prosecutor
• The role of the prosecution advocate at court

Section 41 of the Youth Justice and Criminal Evidence Act 1999 provides protection to complainants in proceedings involving sexual offences by restricting evidence or questions about their previous sexual history by or on behalf of the accused, subject to exceptions and with the leave of the court. These restrictions are intended to achieve the right balance between protection of the complainant and a defendant’s right to a fair trial. It might be useful to refer to Chapter 4 on tackling rape myths and stereotypes.

The legal framework

There is a general prohibition on the admission of previous sexual history evidence and on questions about previous sexual history unless the court gives leave.

Section 41(1) provides that:

‘‘If at a trial a person is charged with a sexual offence, then, except with the leave

of the court—

1. no evidence may be adduced, and
2. no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.’’

“Sexual offence”

“Sexual offence” includes:

• any offence under Part 1 Sexual Offences Act 2003
• offences as outlined in Section 62 YJCEA 1999 or any relevant superseded offence.

“Sexual behaviour”

Section 42(1)(c) of the 1999 Act provides:

‘‘‘sexual behaviour’ means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused’

Sexual behaviour potentially includes:

• sexual activity with the defendant or another;
• engaging in sexually-charged messaging on Facebook as in R v D [2011] EWCA Crim 2305;
• Completion of sexual quizzes on the internet - R v Ben-Rajab and Baccar [2012]1Cr App R4, in which the Court of Appeal took the view that the expression is wide enough to embrace the activity of viewing pornography or engaging in sexually-charged messaging over a live internet connection and included answering questions in a sexually explicit quiz;
• secondary evidence of sexual behaviour (e.g. abortion and paternity suits). In R v P(R) [2013] EWCA Crim 2331, a complainant’s visit to an abortion clinic with defendant was deemed inadmissible. The Court of Appeal held that a question about an abortion may amount to a question about a complainant’s previous sexual activity.

Proceedings to which Section 41 applies

The provisions of s.41 apply equally to trials in the Crown Court and magistrates’ courts and in addition to trials applies to committal for sentence, applications to dismiss following a notice of transfer, Newton hearings and the hearing of appeals.

Section 42(3) of the 1999 Act provides:

‘‘Section 41 applies in relation to the following proceedings as it applies to a trial, namely—

1. proceedings before a magistrates’ court inquiring into an offence as examining justices,
2. the hearing of an application under paragraph 5(1) of Schedule 6 to the Criminal Justice Act 1991 (application to dismiss charge following notice of transfer of case to Crown Court),
3. the hearing of an application under paragraph 2(1) of Schedule 3 to the Crime and Disorder Act 1998 (application to dismiss charge by person sent for trial under section 51 of that Act),
4. any hearing held, between conviction and sentencing, for the purpose of determining matters relevant to the court’s decision as to how the accused is to be dealt with, and
5. the hearing of an appeal,

and references (in section 41 or this section) to a person charged with an offence accordingly include a person convicted of an offence.’’

Procedure and time limits

Procedures and time limits are set out in Section 43 of the Youth Justice and Criminal Evidence Act 1999 and Part 22 Criminal Procedure Rules 2020.

It is crucial that prosecutors are fully conversant with these rules. The key rules are highlighted below:

• Any application must be in writing and must be made as soon as reasonably practicable after becoming aware of the grounds for doing so, and in any event not more than 14 days after the prosecutor discloses material on which the application is based (Rule 22.4(1))
• The application must identify the issue to which the defendant says the complainant’s sexual behaviour is relevant and give particulars of any evidence that the defendant wants to introduce, the questions that the defendant wants to ask and the particular gateway(s) relied upon. The application should also detail the name and date of birth of any witness whose evidence about the complainant’s sexual behaviour the defendant wants to introduce. (Rule 22.4(2))
• The prosecution have 14 days to respond to the defence application (Rule 22.4(6).
• The prosecution cannot consent to an application made to avoid the restriction imposed by Section 41. It may be, in some circumstances, that the prosecution might not oppose an application because, for example, the admission of the evidence was necessary to ensure a fair trial. However, whether or not the evidence is admissible is a matter of judgement that can only be exercised by the trial judge.
• The CPR permit the court to vary this timetable, even after the expiry of the time limits.(Rule 22.8)
• Applications to permit sexual history evidence must be heard in private and in the absence of the complainant. This is provided for by section 43. A failure to comply with this statutory requirement is to rehearse all of the arguments in front of the public gallery. After hearing the application, the judge should state their reasons for either allowing or refusing the application in open court.
• Rule 22.4 requires any applicant to give particulars of any evidence they want to introduce and any questions they want to ask. It is extremely important that the defence put in writing, either in the written application or at the hearing in private, what questions they propose to put to the complainant. It is only by insisting on this that the court will be able to maintain a degree of control over the questioning if it is permitted and will prevent the defence straying into areas that would be forbidden by Section 41 and outside the parameters established by the Judge’s ruling.
• The rules also require the prosecutor to inform a complainant of the court’s decision as soon as reasonably practicable and explain any arrangements that as a result will be made for them to give evidence. This was already required by the CPS guidance ‘Speaking to Witnesses at Court’ The court must allow time for this to happen.

Four gateways to admissibility

An application by or on behalf of an accused at trial can only succeed if the court is satisfied:

1. that one of the four ‘‘gateways’’ applies, namely:
   • 41(3)(a) (evidence or question relates to an issue which is not an issue of consent),
   • 41(3)(b) (relates to consent and the sexual behaviour is alleged to have taken place ‘‘at or about the same time as’’ the event in issue),
   • 41(3)(c) (relates to consent and the sexual behaviour to which the evidence or question relates is so similar to behaviour which, according to the evidence, took place as part of the event or other behaviour by the complainant at about that time that the similarity cannot reasonably be explained as a coincidence), or
   • 41(5) (relates to and rebuts evidence adduced by the prosecution about the complainant’s sexual behaviour); and
   • that a refusal of leave might have the effect of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case

Gateway 1 - Section 41(3)(a) Evidence or question relates to an issue which is not an issue of consent

Section 41(3)(a) applies where the evidence or question relates to a relevant issue in the case and that issue is not an issue of consent. In R v A (no 2) [2002] 1 A.C 45 Lord Hope referred to evidence which is proffered for specific reasons pointing to guilt or innocence as opposed to impermissible generalisations about consent. He gave four examples of issues falling within “issue other than consent”.

a) the defence of reasonable belief in consent

This is likely to be of limited application since in accordance with the 2003 Sexual Offences Act a belief in consent must be reasonable to afford a defence. There will be very few cases where this example will be of practical application as issues of belief in consent are often inextricably bound up with the issue of consent. Since the enactment of Section 41 there have been a number of cases where the Court of Appeal have upheld the refusal to grant leave to admit sexual history evidence on the basis that such evidence did not go to the issue of a reasonable and honest belief in consent and was intended, instead, to suggest that because s/he had had sexual intercourse with someone else, she was likely to have had consensual sex with the accused.

In Harrison [2006] EWCA Crim 1543 the trial judge’s refusal to permit questioning about the complainant having sex with a third party three hours prior to the rape was upheld and was properly prohibited by Section 41.

In Winter [2008] EWCA Crim 3 a complainant telling a suspect she was having a relationship with another man did not provide the suspect with a reasonable basis for belief that she was consenting to sex with him.

b) Complainant had motive to fabricate evidenceor was biased against the accused

Whilst this was suggested by Lord Hope as a possible example of this gateway, it is extremely limited in scope  as the evidence must relate to a “relevant issue in the case” and very often a motive to fabricate will not be a relevant issue. It is important to scrutinise with care the circumstances of the allegation and the reasons it is being suggested why there is an alleged motive to lie. There may be some cases where there will have to be a reference to the sexual behaviour of the complainant when exploring a motive to fabricate to ensure a fair trial but these types of cases should be approached with care. An example of such a case is R v F [2005] 2 Cr App R 13.

c) There is alternative explanation for the physical conditions on which the Crown relies to establish that intercourse took place

Evidence of a previous sexual liaison with a third party might explain why the complainant contracted a sexual transmitted infection which the prosecution rely upon as evidence of penetration by the defendant. Similarly evidence of complainant pregnancy or might bring into play previous sexual activity as alternative explanation for infection.

In R v L [2015] EWCA Crim 741 the prosecution relied upon medical evidence which suggested penile penetration had caused damage to the hymen. The defence were able to reference a previous rape of the same complainant when she was overseas. 

d) Detail of the complainant’s account must have come from other sexual activity before or after event which provides explanation for knowledge of that activity

An issue has arisen in cases where the prosecution argues that complainant would not be able to describe the sexual activity if they had not experienced it with the suspect. The scenario is likely to be unusual since even young children may gain knowledge of sexual practices from a variety of sources e.g. playground or sex education see case of R v MF [2005] EWCA Crim 3376.

Gateway 2 - Section 41(3)(b) Consent and Contemporaneity

This subsection applies if the evidence or question relates to a relevant issue in the case and that issue is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused.

There are no specific time limits around what constitutes ‘about the same time’ as any time limitation risks being arbitrary. Closeness in time will be a factor when considering relevance but the parties may have an intimate relationship and see each other only occasionally.

The tendency has been for the courts to adopt a restrictive approach, examples include:

In R v A [2001] EWCA Crim 4 Rose LJ found it impossible to construe words ‘at or about the same time’ as applying to events months, weeks or even days prior to the events said to give rise to the rape.

In R v A (no. 2) [2002] 1 A.C 45 Lord Slynn favoured a narrow interpretation which would not allow evidence of sexual behaviour to be adduced other than in cases where the acts relied on were ‘really contemporaneous’.

It should be noted that even if the behaviour is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused it does not necessarily follow that it relates to an issue of consent or that the judge will be satisfied for purposes of section 41(3)(b) that a refusal might leave unsafe a decision of the jury.

Gateway 3 - Section 41(3)(c) Consent and similarity

This subsection relates to consent and the sexual behaviour of the complainant to which the question or evidence relates is alleged to have been, in any respect, so similar

1. to any sexual behaviour of the complainant which (according to the evidence adduced to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused; or
2. to any other sexual behaviour of the complainant which (according to the evidence to be adduced) took place at or about the same time as the event the subject matter of the charge.

This gateway is opened when the behaviour of the complainant at the time of, or as part of, the incident complained of is so similar to other behaviour that the similarity cannot reasonably be explained as a coincidence.

The government debates preceding the enactment of the provision made clear that this exception was not designed to cover “evidence of a general approach towards consensual sex such as a predilection for one night stands, or for having consensual sex on a first date. Still less does it include the fact that the complainant has previously consented to sex with people of the same race as the defendant, or has previously had sex in a car, for example, before alleging that she was raped in a car. Such behaviour could reasonably be explained as coincidental, as it falls within the usual range of behaviour that people display” (Hansard 23 March 1999, col 1218 per Government Minister Lord Williams).

Unlike the contemporaneity gateway, there is no need for any temporal proximity. R v T [2004] EWCA Crim 1220 is an illustration of this where the similar act complained of took place three weeks prior to the alleged rape.

The following cases serve to illustrate the approach of the Courts to this gateway.

• R v White [2004] EWCA Crim 946

The allegation was that the complainant had met the appellant and had gone back to her flat where she had been raped. The appellant’s case was that this was an act of consensual intercourse. He had later awoken to find her trying to steal his wallet. They had had a fight and he had left.

At trial the defence had made an application to cross examine the complainant about the fact that she had been a prostitute for 19 years. This was refused by the trial judge.

The Court of Appeal upheld the conviction and held that the fact that she was a prostitute was irrelevant to the issue of consent. The defence case here was not that the appellant was a client of the complainant when working as a prostitute and so the fact that she had numerous previous convictions for prostitution could not be said to be sufficiently similar to the circumstances of the charge so as to bring them within section 41(3)(c).

• R v Harris [2009] EWCA Crim 434

The complainant was making her way home after a night out drinking. She was heavily intoxicated and invited back to her flat a man she had met on her journey home. This was the appellant. The complainant and the appellant also invited a Polish man, whom they had met by chance, back to the flat. It was the complainant’s account that she had been raped by the appellant who had also assaulted the Polish man. The issue at trial was consent.

The prosecution had disclosed the complainant’s medical records in which it was recorded that the complainant had described life choices involving risky sexual behaviour. The appellant sought leave to cross examine the complainant about the details of this behaviour and her attitude to risk arguing that the risk taking in the records was similar to the risky sexual encounter when the appellant and the complainant had met.

The Court of Appeal upheld the trial judge’s refusal to permit this cross-examination finding that there was insufficient similarity between what was described in the records and what was alleged to have happened at the hands of the appellant. The Court also made the point that cross examination would have brought into play evidence about the complainant’s sexual behaviour generally and was not directed to the similarity of the conduct on the relevant occasions. Indeed, in this case, there was no dispute as to the circumstances in which the complainant found herself to be in the company of the appellant; the dispute was what had happened once they were together at the flat and the fact that she had engaged in risky casual sex previously did not mean that she had done so, consensually, on this occasion.

• R v Evans [2017] 1 Cr App R 13

The complainant could recall nothing of the events of the evening. The appellant admitted that sexual intercourse had taken place but said it had been consensual. Alternatively, he had a reasonable belief in consent. He described the complainant as engaging in particular sexual activity and using particular words when doing so. He was convicted at trial.

In due course, this conviction was referred to the Court of Appeal by the Criminal Cases Review Commission where leave was sought to admit fresh evidence. This further evidence had come to light after a campaign by the appellant’s family and was provided by two men, both of whom said they had had sexual intercourse with the complainant, one before the incident the subject of the charge and one afterwards. Both of them described the complainant as behaving, during the sexual encounter, in a similar way to the manner described by the appellant Evans.

The Court admitted the fresh evidence and allowed the appeal. It was made clear that the behaviour admitted through this gateway was not confined to unusual or bizarre behaviour but it had to be sufficiently similar such that it could not reasonably be explained as a coincidence.  

The Court allowed this appeal with some hesitation but found that this was a rare case. Alone, if the jury rejected the appellant’s account of the complainant’s behaviour on the night in question, he was left without a defence. The fact that two others had described similar behaviour with them was capable of supporting his account. This was admissible and relevant evidence and in such a case, the Court was clear that the requirements of Section 41 had to give way to the requirements of a fair trial.

What this case does make clear however is that such cases are rare and the circumstances and issues of each case must be carefully examined.

Previous Sexual Activity between the Accused and the Complainant

The prohibition in Section 41 extends to previous sexual contact between the complainant and the accused. This was an issue considered by the House of Lords in R v A when the House stated that on a strict statutory interpretation, Section 41 was incompatible with the right to a fair trial because it was capable of rendering inadmissible evidence which might be relevant to the defence of consent on a charge of rape and they cited evidence of a previous consensual sexual relationship between the parties.

The Court held that the niceties of the language of section 41(3)(c) – in particular the matter of coincidence - should be subordinated to broader considerations of relevance judged by logical and common sense criteria of time and circumstances and it is possible to read Section 41(3)( c) as subject to an implied provision that evidence or questioning which is required to ensure a fair trial under Article 6 ECHR should not be treated as inadmissible whilst due regard must always be had to the importance of seeking to protect the complainant from indignity and humiliating questions.

It is not a given that in all cases where there has been a relationship between the parties that the prohibition in Section 41 will not apply. Whether evidence of any previous sexual encounter between the parties should be admitted will be case specific and care must be taken to ensure that the restrictions imposed by Section 41 are not being circumvented. In some cases, previous sexual encounters might be very relevant; in other cases, such an encounter might be completely irrelevant. The Court’s example was an isolated episode distant in time and circumstances. The case of R v S [2010] EWCA Crim 1579 is an illustration of a case where the trial judge did not permit cross examination about a previous act of sexual intercourse said to have taken place a few days prior to an incident of a violent rape committed upon a wife by her husband. 

Gateway 4 - Section 41(5) The Rebuttal Gateway

This gateway applies if the evidence or question:

1. Relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; AND
2. In the opinion of the court would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused

It is important to remember that Section 41(4) does not apply to evidence to be adduced under this sub-section but that the questioning must go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained.

It is also important to consider carefully whether the evidence to be rebutted is evidence adduced by the prosecution. In R v Hamadi [2007] EWCA Crim 3048 the Court of Appeal upheld the trial judge’s refusal to permit cross examination about the complainant’s experience with a third party when the evidence to be rebutted was adduced in cross examination by defence counsel.

Restrictions on admissibility

Restrictions that apply to ALL gateways

1. The Court’s duty under Section 41(2)

Even where one of the gateways is met the court must be satisfied (in accordance with section 41(2)(b)) that a refusal of leave might have the effect of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case

Using the words of Lord Hope in R v A, it filters out cases where the evidence is not truly probative. The operation of this section can be seen in R v DB [2012] EWCA Crim 1235 where, in a case where a daughter alleged that she had been raped repeatedly by her father and, as a result, had become pregnant twice, resulting in terminations, evidence that she had had a sexual relationship at the same time with her boyfriend was admitted but not evidence that male DNA was found on her endocervical swabs belonging to another male during a medical examination conducted a few days before her ABE interview. This was sexual activity that had occurred outside the relevant time period and therefore did not assist as to any issue in the case. The only purpose would be to establish that the complainant was not telling the truth when she said in her ABE interview that she had not had sexual intercourse with anyone other than her father. There was already evidence that she had lied about that issue concerning her boyfriend. The evidence about the other man therefore was collateral to any issue in the case; it was therefore prohibited by Section 41(4).

2. Evidence or question must relate to a specific instance or instances of alleged sexual behaviour (section 41(6))

This means that the section expressly prohibits evidence about general reputation or, for example, about the fact that the complainant was or had been a prostitute.

Restrictions relating to Section 41(3) gateway

1. The Section 41(4) prohibition

In accordance with Section 41(4) where the gateway is Section 41(3)(a)(b) or (c) no evidence or question shall be regarded as relating to a relevant issue in the case if the primary purpose is to impugn the credibility of the complainant as a witness.

The case of R v V [2016] EWCA Crim 1434 provides a useful illustration of the Court’s approach to the application of Section 41(4). In this case the Court accepted that Section 41(4) could not prevent all evidence which had a bearing on whether the complainant was credible in the sense that she was telling the truth about the events at trial: if that were the case, the subsection “would exclude almost all defence evidence or cross-examination, as the purpose of that is almost always to suggest that the complainant is wrong and the defendant is not guilty”. What is instead required is careful scrutiny of the stated reason or rationale for the proposed line of questioning. Does the proposed questioning merely seek to perpetuate the second of the twin myths identified by Lord Steyn in R v A (that “unchaste women” are less worthy of belief) or does it instead direct towards evidence on matters that have a “direct bearing” on whether or not the allegation before the jury is true? In other words, the term “credibility”, when used in section 41(4), does not act to exclude evidence that undermines a complainant’s account of the allegation at trial, but to prevent the introduction of evidence that generally suggests she is the type of person whose word should not be believed. 

On the facts of R v V, the Court concluded that the reason for the questioning was to provide an alternative explanation for the detail of the complainant’s evidence about the alleged abuse and for her distress and, specifically, to provide support for the suggestion that she may have been confused and mistaken such that she transposed abuse suffered at the hands of another to the appellant. The proposed questioning was therefore not directed at impugning the credibility of the complainant and accordingly was not prohibited by section 41(4).

Useful link: Refer to Chapter 4 on tackling myths and stereotypes.

False allegations

The restriction in Section 41 does not prohibit questions about a complainant’s previous false complaints of rape and sexual assault because this is not evidence or questioning about any sexual behaviour of the complainant. However, before any questions are asked about alleged previous false complaints, it is important that the defence seek a ruling from the trial judge that section 41 does not apply.

In such a case, the defence must have a proper evidential basis for asserting that the previous statement was both made and was untrue. Whether there is a proper evidential basis is a fact sensitive exercise and a matter of judgment rather than discretion. It is not necessary for the defence to prove that the complaint was false. According to Murray [2009] EWCA Crim 618 a proper evidential basis was said to be “less than a strong factual foundation for concluding that the previous complaint was false but it does require some material from which it could properly be concluded that the complaint was false”. In other words, the defence must be able to point to material that is capable of supporting the inference of falsity but need not inevitably support it. Another case of assistance on this point is R v E [2009] EWCA Crim 2668.

In the case of R v All-Hilly [2014] 2 Cr App R 33 the Court of Appeal ruled that the fact the complainant had made but did not pursue previous allegations did not provide a sound basis for suggesting they were false.

In most cases where the defence want to ask a complainant about an alleged false allegation, in addition to seeking a ruling that section 41 does not apply, the defence will almost certainly be required to make a ‘bad character’ application under Section 100 of the Criminal Justice Act 2003.

Useful link: Refer to Chapter 4 on tackling myths and stereotypes.

The role of the reviewing prosecutor

Prosecutors play an important role in ensuring that material relating to a complainant’s previous sexual history which is not relevant to the issues in the case is not admitted during the course of a trial.  Prosecutors should adopt a structured approach, in which true relevance to an issue in the case is properly and carefully analysed.

1. Checking the witness statement/ABE interview and considering edits

When preparing a case prosecutors should always give consideration to the contents of the witness’s statement or ABE interview. Very often, these statements include information about sexual history. Prosecutors should consider whether this is evidence that the prosecution would want to adduce (the restriction does not apply to evidence adduced by the prosecution) or whether this evidence should be edited. If a decision is made not to adduce this evidence then it should be edited from the statements and the DVDs and the defence should be advised in writing or at the pre-trial plea hearing. If they object, then they can be advised that they will need to make an application under section 41.

2. Checking the defendant interview and considering edits

The same consideration applies to comments made by a defendant in their police interview under caution. These interviews sometimes contain comments by defendants which seek to introduce material which would be in contravention of the section 41 restriction. Prosecutors consider the need to edit these interviews and keep the defence informed of intentions.

3. Steps to follow when a Section 41 application is received

When a Section 41 application is received from the defence the reviewing lawyer for the case must do the following:

• Carefully review the application and reach a preliminary position with regards to how the Crown will respond and record that position on CMS;
• Immediately request written advice from counsel on the application;
• Where an application is made in advance of the trial date, discuss the application and proposed response with counsel at a case conference;
• Approve the response to the Section 41 application prior to service and record action taken on CMS.

4. Steps to follow when a Section 41 application is agreed by the court

Where an application to adduce sexual behaviour evidence has been agreed by the court in advance of the trial date the reviewing lawyer must:

• Ensure the complainant is informed of the court’s decision as soon as is reasonably practicable;
• Consider whether a special measures application or a revised special measures application needs to be made as a result of the court’s decision. In accordance with Part 22.7 of the CPR 2020 the prosecution has 10 business days following the granting of a Section 41 application to apply for a new special measures direction.

The role of the prosecution advocate at court

1. The Plea and Trial Preparation Hearing (PTPH)

At the PTPH, prosecution advocates should ensure that the defence endorse the PTPH form as to whether or not they intend to make a Section 41 application. In appropriate cases, the court should be asked to set a timetable. The importance of proper notice cannot be overemphasised. Late applications often have the effect of ambushing witnesses and can prevent the prosecution from being able appropriately to deal with evidence that the defence wish to adduce.

2. Scrutinising the basis for late applications

There will be cases where there is a genuine reason for the late service of a section 41 application. It may, for example, have been prompted by a matter that has only recently come to the attention of either the prosecution or the defence. Prosecuting advocates must enquire as to the reasons for a late application and to ask the Court to scrutinise the stated reasons.

3. Keeping the victim informed of developments and revisiting special measures where appropriate

Where the court has allowed the introduction of evidence or cross-examination about the complainant’s sexual behaviour the prosecutor must inform the complainant as soon as reasonably practicable (Part 22.3(1)(a) CPR 2020).

Where appropriate the prosecuting advocate should apply for special measures or a revised special measures direction following a decision to allow a Section 41 application. Where special measures have been agreed by the court as a result of the ruling the advocate must inform the complainant as soon as reasonably practicable (Part 22.3(1)(b) CPR 2020.

In accordance with Part 22.3(2) the court must allow the prosecuting advocate sufficient time to comply with the requirements in Part 22.3(1) above.

4. Challenging defence cross-examination on inadmissible matters at trial

Prosecuting advocates should not rely solely on the judge to intervene to stop questioning or evidence being adduced in contravention of the restrictions in section 41. It is the responsibility of the prosecuting advocate to challenge inappropriate cross examination or irrelevant evidence and advocates should be proactive when there is a breach of section 41. The court should be asked to sit in private and if the defence are seeking to establish that a gateway applies, then a proper application can be made to the court.

In some cases, consideration may have to be given, where irrelevant and prejudicial evidence has been adduced without leave, to asking the court to discharge the jury. This is a drastic step and the needs of the complainant will have to be balanced against the need to secure a fair trial for both the prosecution and the defence. This illustrates the importance of understanding the section 41 provisions and ensuring that they are complied with