CLSA CBA Open letter to Harriet Harman MP - 28th March 2017

Harriet Harman MP

House of Commons

London SW1A 0AA

28th March 2017

Dear Ms Harman

Re: 41 Youth Justice and Criminal Evidence Act 1999

We write openly to express concerns about the very public comments that you have recently made in relation to s41 Youth Justice and Criminal Evidence Act 1999.  We are concerned, as both prosecution and defence practitioners that this aspect of the legal system has been misunderstood by MPs and that messages are being delivered to the public which are not reflective of how the system works in practice. 

We appreciate that the efforts made by you and others are essentially well-intentioned, their impact, however, upon the willingness of people to come forward with complaints of sexual offending may well be counter-productive. Continued references to the Ched Evans case as an example of what “typical” cases involve are wholly misleading; it was an unusual case that turned on an unusual set of facts. It was on the peculiar circumstances of that case that the judicial decisions were made.

It is also incorrect to suggest that defence tactics have been ‘drifting in that way for some time’.  Applications to introduce evidence under s41 are, and have always been, subject to strict and clear procedural rules. Such applications are managed in each case by the Judge who makes the final decision, applying the law and taking into account all relevant facts of the individual case.

You may be aware that late last year we met with Jess Phillips at the House of Commons to discuss this very subject and to express our concerns about an open letter sent last year that Ms Phillips had signed.  During that meeting and in correspondence afterwards we expressed the following;

  1. We shared and understood the anxiety that victims of sexual offending are discouraged from taking their complaints to the police by their understanding (accurate or otherwise) of the trial process;
  2. We agreed that it is crucial that the public have a well-founded confidence that the introduction of any sexual history evidence is confined to situations in which a clear relevance can be demonstrated by the party seeking to introduce that evidence.
  3. We expressed the view that s.41 is a provision that can be beneficial to the prosecution as well as the defence (eg; the fact that a complainant was a virgin prior to the events in question can assist in negating a defendant’s assertion that she had all the appearances of someone sexually confident/demanding.)

We expressed the collective view that the current operation and ambit of s.41 remains an effective way of ensuring that the proper limits on introducing evidence of sexual history are maintained and that those limits do not impinge on the rights of a defendant to a fair trial.

We disagreed with any characterisation of the Court of Appeal’s judgment in the Evans case as a ‘precedent’, or any suggestion that it made any material difference to the current operation of s.41. The basis on which the appeal was allowed was not that the Complainant’s previous sexual behaviour was a gateway for impugning her character (the late and wholly unlamented ‘easy virtue’ line of argument), but that the evidence was relevant to the issue of whether the defendant’s account of her behaviour was demonstrably false (and therefore whether his stated belief in her consent was genuine and reasonable);

Unsurprisingly, we did not agree with the proposed amendment to s.41(3) set out in the open letter to the Attorney General. Indeed, we considered the publication of the letter, and the sentiments expressed therein to have a greater potential for damaging the confidence of complainants than the judgment the letter criticised.

We did not consider Jess Phillips to have been anything other than honourable in putting her name to that letter. Indeed the fact that Jess Phillips agreed to meet with us knowing that our respective positions differed reinforced our views.

Sadly, the previously mentioned characterisation of the judgment as a ‘precedent’, coupled with incautious public remarks (that the law was being set back by decades) appear designed more to alarm than inform.  We are concerned that this is a trend set to continue in light of recent reports and comments made on social media.

Section 41 is a notoriously unwieldy piece of legislation. Even lawyers well-versed in the law in this area are known to struggle in articulating its finer points. Whilst this, in itself, is not something to demand your attention, it touches upon the wider, and critical, issue of public understanding of the law.

We are deeply concerned that there is such a desperate absence of civic education in the UK that public misapprehension can be created and manipulated with the greatest ease (for a memorable example, one need only look at the headlines concerning the Miller case, groundlessly attacking the judiciary and fundamentally misrepresenting both the nature and substance of the matter). We are equally concerned about the reporting of, and public discussion around, cases involving allegations of sexual offending. The Evans case was an extreme example, and the consequences for the complainant were unconscionable. However, they touch upon what we consider to be a real flaw in the way in which such cases are dealt by the media, something we believe is too easily compounded by misinformation.  

We agreed that our letter to Ms Phillips could be passed to the Attorney General and the Justice Secretary and that we would be willing to discuss matters with them.

We now write to extend that invitation to you. Between us, we have decades of expertise in dealing, both as prosecutors and defenders, with sexual offences and the application of s41 on a very regular basis. If you would be willing to discuss these issues with us, we would be more than happy to offer what we believe is a valuable resource in the shape of our combined experience in order to assist you in addressing your recently expressed concerns. In turn, we hope that you would be willing to listen to ours.

Yours sincerely

 Sarah Vine (Officer, Criminal Bar Association)

Zoe Gascoyne (Chair, Criminal Law Solicitors’ Association)

Mary Aspinall-Miles (Executive Member, Criminal Bar Association)

The Criminal Law Solicitors' Association 

 The Criminal Bar Association of England and Wales

powered by blue spark*