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Exclusive: Criminal lawyers invite Harman to discuss proposals to protect rape complainants

‘Well-intentioned’ bill may be counter-productive, say solicitors and barristers

28 March 2017

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Harriet Harman has been invited to meet senior criminal lawyers to discuss her plans to introduce a law that would prevent rape complainants from being questioned in court about their sexual history.

The Labour MP has proposed changes to section 41 of the Youth Justice and Criminal Evidence Act 1999, which currently permits defence lawyers to admit evidence of a complainant’s previous sexual history in specific circumstances, as seen in the acquittal of footballer Ched Evans last year.

The former solicitor general and chair of the human rights committee has tabled an amendment to the Prisons and Courts Bill to remove the exception. However, the Criminal Law Solicitors Association (CLSA) and Criminal Bar Association (CBA) have penned an open letter to the MP asking her to rethink her position.

The letter was written by Zoe Gascoyne, chair of CLSA, and Sarah Vine and Mary Aspinall-Miles of the CBA, who expressed their concerns that section 41 ‘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.

‘Between us, we have decades of expertise in dealing, both as prosecutors and defenders, with sexual offences and the application of [section 41] 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.’

Harman had said the idea of introducing a complainant’s sexual history into a rape trial had ‘no evidential value’ and was deeply outdated.

‘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,’ she said.

‘What you have to look at is the evidence and the information around that encounter, not any previous sexual encounters.’

She added that the exception had been a problem for some time prior to the Ched Evans case. Recent research from Dame Vera Baird QC, also a former solicitor general, found that the complainant’s previous sexual conduct was used in 11 of 30 rape trials watched by court observers over an 18-month period.

However, the CLSA and the CBA also said continued references to the Evans case as an example of what typical cases involve were ‘wholly misleading’ because it was ‘an unusual case that turned on an unusual set of facts’.

Over the weekend criminal lawyers voiced their concerns over amendment of the current law over social media. 'The Secret Barrister' and barrister Matthew Scott both suggested Harman’s bill would be ruled incompatible with the right to a fair trial under the European Convention on Human Rights.

This is not the first time an MP has called for a change to the law in this area following the Evans case. In October 2016, Jess Phillips wrote to the attorney general, Jeremy Wright QC, and the secretary of state for justice, Liz Truss, to seek action through legislation or regulation. Harman and 35 others from the Labour Party also signed the letter.

Today’s open letter details how Gascoyne, Vine, and Aspinall-Miles met with Phillips late last year to express their concerns and collective view that the current operation of section 41 remained ‘an effective way of ensuring that the proper limits on introducing evidence of sexual history are maintained’.

Last month the justice secretary announced that she and the attorney general would conduct a review of section 41, with Truss saying she did not want the law ‘to be used as an excuse to shame victims of serious crimes’.

Any changes could coincide with Truss’ plans to allow complainants to pre-record their evidence and cross-examination in adult sexual offence trials following a successful pilot scheme. The new measures, which have also been criticised by lawyers, will be rolled out in September.

Read the full letter to Harriet Harman here.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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Crime

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RAPE CROSS EXAMINATION SECTION 41 Youth Justice Criminal and Evidence Act 1999