The study is the largest empirical study ever conducted of the operation of section 41 of the Youth Justice and Criminal Evidence Act 1999, governing cross-examination of sexual assault complainants on their previous sexual behaviour, in trials across England and Wales. It is impossible to understand how such evidence is handled in trials merely from reading reported judgments, because these reflect only cases which the defence has appealed to the Court of Appeal on the basis that such evidence was wrongly excluded by the trial judge, since the prosecution does not have an equivalent right to seek leave to appeal.
The data collected from criminal barristers examines, in depth, 377 cases involving 565 complainants, which proceeded to trial in 105 Crown Courts centres in the 24 months immediately prior to November 2017. The rich data was collected from the professionals uniquely placed to know exactly what happened before and at trial: the barristers who prosecuted and defended in the cases in the sample. The research enabled insights into daily practice, including consultations with clients, trial strategy, legal arguments made in closed courts in section 41 applications, and discussions and agreements between counsel outside the courtroom.
This study is unique in collecting data on applications to use previous sexual behaviour evidence in respect of all sexual offences, not just rape, and without any restrictions on complainants as to gender or age. Many children and adolescents feature in the sample. So too do many historical complaints, and many cases involving multiple complainants.
The findings of this report are already leading to further, better informed, debate concerning a complex and highly controversial area of law about the handling of extremely difficult and emotive circumstances at trial which engage the rights of both complainants and defendants to a fair trial.