Hi, s41-43 of the EJCEA intent was to abolish the introduction of any evidence of the sexual history of the victim, as this had been used previously to undermine her credibility. So section 41 prevented the cross examination of the victims sexual history if its intent was to show promiscuity, undermine her credibility and just blatantly attack her character, however in a trail the credibility of both parties will be questioned to some extent. What section 41 didn’t do was abolish “similar fact evidence” “relevant evidence” or refuse evidence which might result in an unfair trial under Article 6. S41 was and still is a restrictive statute according to many Criminal Evidence scholars as it also prevented any previous sexual history between the accused and the victim.
S41-43 didn’t differentiate, this was the crux of the case of R v A 2001.. where a boyfriend (used loosely) was prevented from introducing evidence that he had previously slept with the victim a week before, the ECJ held that only if sexual intercourse had taken place within a 48 hour period would it be relevant, anything outside of that window wasn’t relevant unless the circumstances in with the alleged offense took place were so similar. This 48 hour window brought a bit of clarity to the vague terminology of some of s41-43
What s41 didn’t do either was differentiate between “similar fact evidence” in relation to previous sexual history of the accused and victim and the victim and “others”. This void in the legislation has always been filled by either the HRA or CJA, in fairness and in the interest of justice if relevant evidence was not introduced it would seriously undermine any conviction. So what is relevant in the Evans case is firstly the victim had no recollection of intercourse but Evans did and gave a very detailed account of the events never denying anything other than the polices assertion that the victim was too drunk to consent and that he did not rape her and that she had consensual sex and took the lead making several sexual comments and changing sexual positions and inviting Evans to enter her whilst on all fours.
The new evidence from witnesses that had previous encounters with the victim was of paramount importance. These witnesses accounts of their sexual encounters with the victim were not an attempt to attack her character or attack her credibility, barred by s41...on the contrary, it was because her behaviour and words that were used demonstrate the Evans either thought the victim was consenting or that he had reasonable belief that she was consenting..because others had had sex with her and the exact same things had happened, she had no recollection of her actions the night before, a pattern of getting drunk and not knowing whether she had sex or not emerged, but more importantly the other witnesses who had experienced this could show that they were not rapists and at the very least had a reasonable belief in consent at the time due to her sexual behaviour and words used during intercourse, to show she may have been drunk but was an active willing and sometimes dominant party to intercourse in circumstances that may be argued either way are a little more than coincidence not extraordinary just similar and highly relevant to Evans case.
The only reason these witness statements were not introduced earlier was that for the first trial Evans lawyers failed to question witnesses about the victims actions and words that she had used during intercourse with them as the lawyers mistakenly thought this would be barred under s41 under previous sexual history, so they didn’t think to ask the relevant questions to the witnesses, there was no record on file according to the court of the initial solicitors exploring this avenue in any depth, infact the only reason the witness who was first intended to be used was interviewed, was only to counter the assertion that the victim wouldn’t sleep with a stranger, but seeing as the prosecution retracted that assertion there was no need to call the witnesses to give evidence, or so his first incopenet legal team thought, it was only when these witnesses were questioned more thorough that it became apparent that there was the need to introduce their evidence to back up Evans claim she consented or that he had reasonable belief she was consenting due to her words and actions that took place which was so similar to the other occasions including her memory loss, that to deny this evidence would result in an unsafe conviction. It should be noted that the witnesses had very little contact with Evans and his circle, both witnesses were of good character and noted by the court they were credible and there was no evidence whatsoever of coercion or fabrication of evidence. So s41 hasn’t changed, it still prohibits the questioning of the victims sexual history if the intent is to humiliate, discredit her character or solely attack her credibility (remembering that the credibility of both parties will to some degree always be in question)..It “should “never prevent the accused from a fair trial.
S41-43 didn’t differentiate, this was the crux of the case of R v A 2001.. where a boyfriend (used loosely) was prevented from introducing evidence that he had previously slept with the victim a week before, the ECJ held that only if sexual intercourse had taken place within a 48 hour period would it be relevant, anything outside of that window wasn’t relevant unless the circumstances in with the alleged offense took place were so similar. This 48 hour window brought a bit of clarity to the vague terminology of some of s41-43
What s41 didn’t do either was differentiate between “similar fact evidence” in relation to previous sexual history of the accused and victim and the victim and “others”. This void in the legislation has always been filled by either the HRA or CJA, in fairness and in the interest of justice if relevant evidence was not introduced it would seriously undermine any conviction. So what is relevant in the Evans case is firstly the victim had no recollection of intercourse but Evans did and gave a very detailed account of the events never denying anything other than the polices assertion that the victim was too drunk to consent and that he did not rape her and that she had consensual sex and took the lead making several sexual comments and changing sexual positions and inviting Evans to enter her whilst on all fours.
The new evidence from witnesses that had previous encounters with the victim was of paramount importance. These witnesses accounts of their sexual encounters with the victim were not an attempt to attack her character or attack her credibility, barred by s41...on the contrary, it was because her behaviour and words that were used demonstrate the Evans either thought the victim was consenting or that he had reasonable belief that she was consenting..because others had had sex with her and the exact same things had happened, she had no recollection of her actions the night before, a pattern of getting drunk and not knowing whether she had sex or not emerged, but more importantly the other witnesses who had experienced this could show that they were not rapists and at the very least had a reasonable belief in consent at the time due to her sexual behaviour and words used during intercourse, to show she may have been drunk but was an active willing and sometimes dominant party to intercourse in circumstances that may be argued either way are a little more than coincidence not extraordinary just similar and highly relevant to Evans case.
The only reason these witness statements were not introduced earlier was that for the first trial Evans lawyers failed to question witnesses about the victims actions and words that she had used during intercourse with them as the lawyers mistakenly thought this would be barred under s41 under previous sexual history, so they didn’t think to ask the relevant questions to the witnesses, there was no record on file according to the court of the initial solicitors exploring this avenue in any depth, infact the only reason the witness who was first intended to be used was interviewed, was only to counter the assertion that the victim wouldn’t sleep with a stranger, but seeing as the prosecution retracted that assertion there was no need to call the witnesses to give evidence, or so his first incopenet legal team thought, it was only when these witnesses were questioned more thorough that it became apparent that there was the need to introduce their evidence to back up Evans claim she consented or that he had reasonable belief she was consenting due to her words and actions that took place which was so similar to the other occasions including her memory loss, that to deny this evidence would result in an unsafe conviction. It should be noted that the witnesses had very little contact with Evans and his circle, both witnesses were of good character and noted by the court they were credible and there was no evidence whatsoever of coercion or fabrication of evidence. So s41 hasn’t changed, it still prohibits the questioning of the victims sexual history if the intent is to humiliate, discredit her character or solely attack her credibility (remembering that the credibility of both parties will to some degree always be in question)..It “should “never prevent the accused from a fair trial.
