December 23, 2025
Professor Laura Hoyano has published in Counsel Magazine a strong critique of the Law Commission’s proposals to reform the Youth Justice and Criminal Evidence Act 1999 s. 41, which governs the admissibility in sex offence trials of evidence of the complainant’s sexual behaviour on other occasions. Whilst s. 41 needs to be completely replaced, she uses the Law Commission’s own worked example of its preferred model of guided judicial discretion to demonstrate how it conflicts with the legal rules governing sex offence trials in the Human Rights Act 1999/ECHR Arts 8 and 6, the Sexual Offences Act 2003 s. 1, and the rules of evidence. She urges the Law Commission not to tinker with the guided judicial discretion model in the Criminal Code of Canada s. 276, but instead to adopt it so that the extensive Canadian body of precedent since 1992 can inform English and Welsh courts’ consideration of the new approach.
Read full piece here
RLC member Laura Hoyano is Emeritus Professor of Law at the University of Oxford and conducted the largest empirical study of the use of sexual behaviour evidence in the courts of England and Wales under YJCEA 1999, s 41.