In October 2017 The Criminal Bar Association (CBA) commissioned an independent report into section 41 of the Youth Justice and Criminal Evidence Act 1999. This section prohibits questioning as to previous sexual behaviour in sexual offence cases unless certain tests of admissibility are met. Angela Rafferty QC, the then Chair of the CBA and a RLC member, commissioned the study following the Ched Evans judgment, R v Evans (Chedwyn)  EWCA Crim 452,  4 WLR 169,  Crim LR 406. This case has led to considerable and continuing public debate about cross-examination in sexual offence cases.
The survey was designed with the help of the CBA Working Party on section 41: Sarah Vine (Chair), Mary Aspinall-Miles, and Alisdair Williamson QC. This group continues its work on this important legislative provision.
Barrister and RLC tenant Laura Hoyano, (Associate Professor of Law, University of Oxford, Senior Research Fellow, Wadham College, Oxford) carried out the research.
The report analyses results from a survey of responses from 140 practising criminal barristers who had prosecuted and defended (66% in both roles) in their ten most recent cases. This produced a research sample of 377 cases involving 565 complainants, which proceeded to trial in 105 Crown Courts centres in the 24 months immediately prior to November 2017. It is the largest and most detailed peer-reviewed empirical study of its kind. The case sample encompassed all sexual offences, all genders, and all age groups of complainants, from adults to children under 13.
Chris Henley QC, chair of the Criminal Bar Association said: “I would like to thank my colleagues across the Criminal Bar for their participation in this important independent survey and analysis. This report is the result of many months of hard work and dedication. It provides the first solid and comprehensive evidence base which will better inform public understanding on this profoundly important issue and serve the needs of policymakers and the wider criminal justice system in the months and years ahead.”
Laura Hoyano said: “This research study examines the actual operation of section 41 on a daily basis in trials across England and Wales. These hearings are closed to the public so only the advocates know what actually was in issue in a given case. The data confirms that the admission of previous sexual behaviour evidence under section 41 remains very exceptional, contrary to previous published reports; that when it is admitted, it is for a specific evidential target deemed to be relevant by Parliament; and that successful applications were on narrow points which could be covered very briefly, and did not authorise wide-ranging cross-examination on sexual history. Often agreement was reached between counsel to find other ways of presenting the evidence to the jury, avoiding cross-examination of the complainant about it.”
“There are a lot of myths pushed about section 41 YJCEA, which relates to evidence and cross-examination of a complainant’s sexual history. Today the largest and most detailed independent, peer-reviewed empirical study of its kind is published. It is worth reading.” the Secret Barrister
“If you read one thing, today make it this.” The CBA
“The future of evaluating how legal provisions are working in practice – a great model study with insightful outcomes reported. ” Michael Goodwin RLC Barrister
“..a tour de force by Laura Hoyano” Mary Aspinall- Miles Barrister
“An extraordinary piece of evidence-based work. No doubt some will criticise the conclusions, but they will have to do so on the basis of data and equally (or more) rigorous analysis. I doubt this paper will be the last – even if the best – word on the subject.” James Corbett QC
Read Key Findings here:
Laura Hoyano Summary of Methodology and Key Findings. [Click Here]
Read Full Report [here]:
Download the report [Click here] (link from the CBA)