Harriet Harman’s proposed ban on sexual history evidence would be grotesquely unfair

Over the last few years there have been a number of powerful nominations for the title of stupidest Parliamentarian. This blog has in the past made what I thought was a powerful case for the prize to be jointly shared between Messrs Peter Bone and Phillip Hollobone, and the Secret Barrister has repeatedly and persuasively argued the case for Phillip Davies, and indeed may do so again at greater length in his eagerly awaited book. Just to prove that Conservatives do not have a stranglehold on the competition along comes Harriet Harman with a legislative proposal which is guaranteed to produce injustice and, for good measure, is virtually certain to be ruled incompatible with the Article 6 right to a fair trial under the European Convention on Human Rights.

Ms Harman has tabled an amendment to the Prison and Courts Bill which is currently working its way through Parliament. The effect would be to amend S.41 of the Youth Justice and Criminal Justice Act 1999, the provision that prevents, in most cases, the cross-examination of complainants in sex cases about their sexual history. At present subsection (1) reads as follows:

Restriction on evidence or questions about complainant’s sexual history.

(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.

The emphasis is mine, as these are the most important words that Ms Harman wishes to remove.

(Note that there is no restriction placed by this section on prosecution evidence. It is directed only towards evidence that the defence may wish to adduce or questions that they might wish to ask).

There then follow a number of circumstances set out in detail in subsections (2) to (8) in which it is possible for a trial judge to allow such cross-examination. The provisions are quite complex and I shall not trouble you with the detail here, but they include the situation in which the defence wants to rebut something the complainant has said in evidence (let’s say by way of a typical example, “I would never willingly have had sex with the defendant because I have never had sex with a stranger at a party”); and the situation which arose in the Ched Evans case in which a complainant’s behaviour on another occasion was arguably so similar to that on the occasion in dispute that the similarity “cannot reasonably be explained by coincidence.” Even then the evidence remains inadmissible unless the trial judge is also satisfied that a refusal to allow such questioning “might have the result of rendering” any guilty verdict unsafe.

It’s no good pretending that the existing S.41 is a particularly good or well-drafted piece of legislation. It is not. It is confusing and difficult to follow. It could probably do with a complete re-write to remedy those faults.

Nevertheless S.41 as it currently stands is extremely restrictive. There is a complete ban on any question when it is“reasonable to assume that the purpose (or main purpose) for which it would be … asked is to establish or elicit material for impugning the credibility of the complainant as a witness.” In other words even if you wanted to you cannot make the argument that because a complainant has slept around she shouldn’t be believed.

But it is far more restrictive than this. There is no obvious way, for example, that it permits cross-examination designed to reveal the fact that complainant and defendant were in a sexual relationship at the time of an alleged rape. Interpreted literally, if a complainant chose not to mention this pretty important piece of information a defendant would not be legally able to reveal the true position, either by cross-examination, or by mentioning the fact in his own evidence. For this reason, in one of the earliest cases in which the Human Rights Act featured in a criminal case, the House of Lords ruled in R v. A [2002] 1 A.C. 45 that evidence of a complainant’s previous sexual history was admissible “where that evidence, and questioning concerning it, was so relevant to the issue of consent that by not including it the fairness of the trial would be brought into question.” The Court had to strain the tortuous language of S.41 almost to breaking point to arrive at this conclusion, but by doing so it meant that courts were not forced to conduct rape trials that would otherwise have been unfair, or alternatively forced to refuse to conduct them at all.

Ms Harman’s proposal has the sole virtue of simplicity. If her amendment is passed S.41 would read, in its entirety, as follows:

(1) If at a trial a person is charged with a sexual offence, then—

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.

That’s it. Subsections (2) to (8) would disappear. There would be no exceptions. Ms Harman’s amendment sweeps them all away, along with the discretion of the trial judge.

A defendant would not be able to give evidence that he had been in a sexual relationship with the complainant.

He would no longer be entitled to rebut anything a complainant chose to say about her own sexual behaviour. She (or he) could say anything, safe in the knowledge that the defendant would be absolutely prohibited from rebutting even the most preposterous lies.

And even if defence, prosecution and judge were all to agree that a refusal to allow the cross-examination (or adduce the evidence) was certain to create an unfair trial, a judge would still be unable to do anything about it.

The inevitable result of such a change in the law would be to produce grotesque injustice. It could not do anything else. How could it possibly always be right that a defendant should be prevented from telling a jury that he was in a sexual relationship with a complainant? Of course the existence of such a relationship does not mean a rape could not take place, and nobody in their right minds would ever dream of making such an argument. Of course, there are cases in which the existence – perhaps in the distant past – of such a relationship would be entirely irrelevant. Yet a law which prevented juries from ever knowing about it, except when volunteered by the prosecution, would, in many cases, mean asking jurors to decide whether a man is guilty of rape without exactly the sort of crucial evidence about their relationship which might help them to make the correct decision.

So how does Ms Harman defend her amendment? Over to the the Guardian where she set out her stall:

Introducing a complainant’s sexual history into a rape trial is “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 ….”

What Harman does not say is that the straw-man argument which she ridicules is never made and is flatly prohibited by the law as it stands. In any case, even if it were the problem that she claims, her amendment goes far beyond such cases. It prevents an accused man making the perfectly respectable argument that because a woman had behaved in a sexually similar way with him on numerous occasions in the past he reasonably believed that she was consenting on the occasion in question.

Harman continues:

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

Let’s say that the evidence is that the man tied the complainant up and then beat her on the buttocks before having intercourse with her. It is the sort of thing that a particularly nasty rapist might do. On the other hand it is also a thing that consenting adults do to one another. His defence is that this was all a consensual game, and moreover something that the two of them had happily done to each other hundreds of times before. Under the Harman amendment you could look at the “information around that encounter,” the rope, the beating and the bruises. What you could not do is put the couple’s past history into the equation which would put that information in a completely different light. The complainant could even say “I would never consent to that sort of thing, bondage and sado-masochism repel me,” and the man would be prevented in law from rebutting her lies. Such a situation would be absurd and (if the stakes were not so high) almost laughably unfair. It is possible to imagine all sorts of other situations, but it is not necessary because the law and human nature has a way of throwing up the unexpected in sex cases, as in life generally.

Faced with a case in which a defendant wished to introduce evidence which the trial judge accepts is both relevant and necessary to avoid an unfair trial, what is he or she to do under Harman’s law? The answer is one of three things:

(a) Ignore the law, preserve the fairness of the trial and allow the “forbidden” evidence in anyway;

(b) Allow an unfair trial to continue; or

(c) Rule that Ms Harman’s amendment has meant that a fair trial is impossible, and stay the proceedings accordingly.

Judges are sworn to uphold the law, so (a) would be impossible.

Likewise, courts could not legitimately allow (b). Judges have both an inherent jurisdiction to prevent unfair trials, and a statutory duty under S.6 (1) of the Human Rights Act not “to act in a way which is incompatible with a Convention right.” Since one of the Convention rights is the Article 6 right to a fair trial, trial judges cannot lawfully permit unfair trials to take place.

That leaves only (c). The (doubtless unintended) consequence of Ms Harman’s amendment becoming law would thus be that some rape trials would have to be discontinued because under her proposed rules they simply could not be conducted fairly. If a fair trial is impossible English law is the same as international law: it should not take place at all.

The charitable conclusion to be drawn from this is that Ms Harman is just very, very stupid; that she is unable to think beyond crude sloganising of the sort that draws easy applause at Labour Party events. Perhaps there is something in this, but I don’t think it will do. Ms Harman cannot be that stupid. She was a successful solicitor before entering Parliament, taking on and winning high profile and complicated cases.

Nor can she claim ignorance. She is a previous Solicitor General and Minister of Justice. She must know that if it passed into law her amendment would immediately breach the European Convention on Human Rights, and thus our own Human Rights Act (of which she is an enthusiastic supporter). It is inconceivable that she is ignorant of R v. A in which the House of Lords made it crystal clear that a blanket ban on all “sexual history” evidence would breach the Article 6 right to a fair trial.

Ms Harman has been a very eloquent defender of the principle of the Human Rights Act. Here she was in 2015 speaking on the 800th anniversary of Magna Carta:

Defence of human rights even in the face of unpopularity

Believing in those rights is one thing. But their application is quite another. It’s hard. What those founding signatories knew – and what remains true today – is that defence of those rights has to be uncompromising.

Defence of those rights will not always be popular. And sometimes will be deeply unpopular. As US Chief Justice Frankfurter observed as long ago as 1950:

The safeguards of liberty have frequently been forged in controversies involving not very nice people”

We must defend the rights of every individual – those we don’t agree with or approve of, as well as those we do agree with and approve of. We have to protect the minority from the majority.

And we have to protect the individual from the state when it gets it wrong.”

Please, Ms Harman, go back and read Chief Justice Frankfurter again: “we must defend the rights of every individual – those we don’t agree with or approve of, as well as those we agree with and approve of.” Do you know what? Amongst other people he is talking about men (and women) accused of sex crimes. They too have the right to a fair trial.

You can of course garner cheap applause from your supporters. You can insist that people accused of rape should not have the same rights to defend themselves that other defendants have. You can accept the collateral damage that your ridiculous gesture-law would lead to both unfair convictions and unfair acquittals of defendants in sex cases. What you cannot do is to pose as a defender of human rights in principle, whilst sponsoring a change in the law that would institutionalise unfair trials.

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

31 thoughts on “Harriet Harman’s proposed ban on sexual history evidence would be grotesquely unfair”

  1. Frank Field famously described Harman as being “thick”. Nothing in her legislative proposal challenges this description.

  2. Another excellent piece. (I didn’t know you were writing a book ; that’s one for the present list …..)

    I like you struggle with Harman.

    She can’t possibly be that stupid. I’m not remotely a lawyer and “Ched Evans” was the first thing that came into my head reading of this proposal yesterday. Your excellent article generalises that.

    The problem is, the only alternative to stupidity is that she is an unbelievably nasty ruthless piece of s**t. “I don’t care about the rights of people in trials as long as it advances my cause. Ched Evans and any other accused rapist goes to jail guilty or not.”

    The remarkable thing is she has two sons. Which you think might make her think if nothing else.

    I don’t think incidentally, that the judge would halt the trial (having seen the behaviour of such at close range in the Residential Care trials that preceded the Celebrity trials), they’d just carry on anyway. I recall one historical abuse case where the defence were told on the morning of the trial that the claimed date of the abuse had moved by six years, which meant almost all the counter evidence was valueless. It still went ahead.

  3. Not much more need to be said after this excellent gutting and filleting of Harman’s absurd and, in so far as it obviously intended to disadvantage men for being men, sexist proposal. I imagine Matthew has many Parliamentarians amongst his impressive 11.2k followers but just to be sure I hope a copy of this article will be sent to those currently piloting the Bill through Parliament. Harman evidently needs to be saved from herself.

  4. Harriet Harman has always been a loon, particularly with regard to ‘wimmin’s issues’. I have been concerned of late that she has been playing the Mrs Sensible card (or perhaps it’s just by comparison with other Labour politicians).

    For those of us who respect women and value their role in society – equal but different – it is reassuring to see her revert to type. Ladies, observe, this is an ‘airhead’ and it’s an affliction every bit as prevalent amongst men. Don’t let Ms Harman bring your gender into disrepute.

    1. This is what really worries me – that this is being done in the name of ‘feminism’. It in no way supports or helps women. It doesn’t even help even rape victims! Women look stupid for supporting such rubbish. Women will suffer if injustice is permitted. How is this anything to do with feminism or helping women?

  5. Harriet Harman was a Minister at MoJ at the time when “the rapist won the lottery”.

    She was not embarrassed to say that he could not ahve the money because “the court of public opinion will not allow it”.

    Camelot – no doubt on advice about what the more traditional courts which fell within Ms H’s purview would say – paid him his money, and those courts later decided that he must pay damages to his original victim, and those damages were agreed and paid (and donated to charity) without recourse to “the court of public opinion”.

    But what a thing for a Minister, and above all a Minister for Justice, to say!

  6. First up, beautifully written to be read so thank you for that, disturbingly rare these days.

    Second, a concurrence: I named Hattie H and BoJo “the two most dangerous politicians in Britain” in 2011, and have seen no reason to change my mind. You always know where you are with HH: everything she says earns a Zero Consequences Thought award. One is reminded of her “rainbow of sexual experience” phrase from 1970.

    Everything in the Law is supposed (I surmise) to be about justice, equality before a Court, and a sound, socially cohesive interpretation. To me, inflexible ideology is the enemy of those aspirations. I honestly believe Harman has not read a single, open-minded book about behavioural neuroscience and social anthropology since her student days. She remains the only Minister for Women who did not a jot of good in dealing with Secret Family Courts abuses….an award she shares with ballroom dancer Ed Balls when he was Minister for Families.

    Finally, it is vitally important that you discover the Elixir of Life. Your wisdom will be forever needed.

  7. This is a great piece. And it is clear that Harman’s proposal is one which seems to provide a statutory basis for unfair trials in certain circumstances.

    However the legal analysis above seems to ignore an essential feature of the scheme of the Human Rights Act 1998. Section 6(2) of the Act provides that it is not unlawful for a public authority to act incompatibly with Convention rights if

    “(a)as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
    (b)in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.”

    Of course, the question would then be, as in R v A, whether section 3 of the HRA would permit the judges to adopt a different interpretation of Harman’s amended section 41. The decision in R v A was quite controversial in so far as it used section 3 effectively to amend section 41 under the guise of a section 3 “interpretation”. Whatever about the legal acceptability of that, Harman’s suggested amendment is clear on the point at issue, and arguably attempting to use section 3 to give it a Convention compliant meaning “would not be possible”.

    If that analysis is correct, in such a situation the judge will be bound by the new section 41. He will not be acting unlawfully (though he may be acting incompatibly with Article 6). Clearly the trial judges ruling on that matter would be appealed to the CA (as was the case in RvA) and seems likely to end up in the SC. A declaration of incompatibility as regards Harman’s suggested amended section 41 may well have to be made. But section 4(6) of the HRA means that such a declaration does not affect a judge’s legal obligation to prohibit the questions. Such an action would remain legally valid and the legislation would remain intact until such time as Parliament acted to amend it to remove the incompatibility which Harman’s amendment seems likely to introduce (and which arguably could not be removed using section 3 of the HRA).

    Of course it’s possible that judges may develop the law, simply to say they will not countenance a provision which mandates an unfair trial, whatever the HRA may provide. But that would be a ruling in the face of Parliament’s express provision to the contrary and would involve a straight forward clash between judicial power and Parliamentary Sovereignty.

  8. A well argued and clearly explained piece from Matthew.

    As Ms Harman is so keen on ‘the court of public opinion’, then she will understand that one does not have to be an experienced lawyer to consider a proposal absurd. I wonder if this is a (poor) attempt to get her name on a piece of legislation before retiring.

    I do not think the ‘Harman Amendment’ should be allowed, and judges do not need their hand being held by a rather confused campaigner, when deciding what evidence the court should be allowed to consider.

  9. Harman’s proposed amendment is clearly problematic. Unfortunately, by not going into detail about subsections 2-8, you have concealed the gaping hole in the legislation at 41(3)(c) which allows the defence to argue that any ‘similar’ sexual behaviour should be cited in court, regardless of its immediate practical relevance to the case in question, incentivising a vigorous and highly intrusive pursuit of complainants’ sexual history, and disclosure of details in court. Previous sexual behaviour should be of no relevance in rape trials unless it bears directly on the complainant’s credibility as a witness to the act of consent. Unfortunately that is not what the legislation achieves and to that extent Harman is right to call it out. Unfortunately she’s chosen the wrong way to do it.

    1. S41(3) in its entirety reads:

      (3) This subsection applies if the evidence or question relates to a relevant issue in the case and either—
      (a) that issue is not an issue of consent; or
      (b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
      (c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—
      (i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
      (ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
      that the similarity cannot reasonably be explained as a coincidence.

      At what point does an issue of consent cease to be of “immediate practical relevance to the case in question”?

  10. In a case where it’s one persons word against another’s, then if one side isn’t to be cross questioned, the jury won’t be able to decide if they’re telling the truth, so,by that defenition they on,y get to here the defendants side, so a jury may then either decide or be advised by a judge, that as they only heard the defendants side and can reason the one side to out they heard is the truth, surely this will lead(quite rightly in terms of the law) to more Aquittals or the judge ordering Aquittals

  11. Harman’s changes would make it difficult for trial proceedings to begin, let alone proceed to mistrial, as the defendant would be unable to keep to his/her Oath to tell “the whole truth” being hamstrung from the word go.

  12. Greetings. This is my first comment here, although I’ve read for a while. I’m not legally trained but I can read. Here is a direct copy & paste from the CPS guidance on its website.

    ‘Section 78 PACE enables a court to exclude evidence which would otherwise be admissible against a defendant on the basis it would be unfair to adduce it . The nature of the courts discretion was explained by Lord Lane C.J. in the case of R v Quinn Crim L.R. 581:

    “…The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if… all relevant evidence [is heard] which either side wishes to place before [ the court], but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet.”‘

    Cannot properly challenge or meet… by statute! So ANY trial using evidence where the defendant cannot ask questions about it or even comment on it in his own testimony becomes unfair. Right?

    1. Yes, if the law forbids a defendant answering prosecution evidence with relevant evidence of his own then, unless the prosecution evidence is trivial, it’s hard to see how the trial can be fair.

      Thanks for your comment & welcome to Barristerblogger!

  13. I’ve actually just finished reading Ms Harman’s memoirs. From that she gives the appearance of lacking in intelligence in the sense that she seems constitutionally incapable of seeing and understanding points of view which do not fit in with her ideology. Given that, this proposal does not surprise me at all.

  14. Good piece, as usual, from Barrister Blogger but derogatory “personal” comments have given HH some scope and wriggling space to complain, unfortunately, so she can “avoid” the debate by highlighting personal attacks/ abuse of her (See her tweets).
    Seems to me she is sadly jumping on a bandwagon… (that being the mission to increase conviction rates to make up for “past mistakes” but which of course leads to even more people being wrongly convicted and accused) ..and quite wrongly others have supported her quoting a “feminist” agenda which in reality serves the interest of no one, including all feminists, ironically.
    Starting from a position of “belief” and not having serious analytical evidence checks and balances in place, either via proper disclosure or cross examination at trial, gives police the momentum and incentive to not do their job properly (a thorough full investigation) and with a CPS “swamped” with cases, both agreeing to put it before a jury, and “see what happens”. When some cases which, in retrospective view of police and CPS, “had little chance” of “success” result in conviction it becomes a gambling game and cases which should not get past the “evidence test” are put forward or allowed to proceed. The result is back slapping and congratulatory noises from those who seem to care little for the pursuit of truth. The suffering of those falsely accused, their families, friends and work colleagues is unheard, and unimaginable to most.
    First time I ever posted anything on anything……not sure I should have or will ever again, but I hope there are some decent people out there, who understand the law, and who can make sure changes for the worse (like these proposed) are never allowed.

  15. Could you please explain why my recent comment was not added ?
    My first and possibly last comment on any site……..and no explanation why it did not meet with approval as a result of “moderation”, presumably?
    Mr Scott, I have read various posts / comments that you have made and believe you have some valid points to make.

    1. I can explain Polly. I have to moderate comments to reduce libel & other risks. I try to do so with a very light touch. Unfortunately it takes time & there are only so many hours in the day. Just 23 in fact since the clocks changed on Sunday….

      But many thanks for your comment, you do have a point about my being too rude to Harriet Harman.

      1. Matthew, thank you for explaining.
        I hope that you , along with others with the knowledge and skills/experience base, can challenge and prevent any such proposals being incorporated into Law. Goodness knows there are already more than enough ridiculous practices within Police and Justice system affording “victim” status and “belief” to those more correctly termed complainants, with the consequence that “safeguards” are being used to make it easier for those making false allegations, and those whose not insubstantial business is based upon them, to create havoc.
        Keep fighting injustice, in all its forms, as best you can. Thanks.

  16. Labour claim they’re a supporter of civil liberties,yet Harriet Harman doesn’t want in court when its one persons word against another for a rape accuser to be cross questioned about whether it was sex or rape by asking had what had happened previously happened with her saying she’d consented, that means the judge would feel the accused wouldn’t get a fair hearing may tell the jury to acquit despite their being an abundance of other information

  17. Judges are smart enough to see whether past cases or history is relevant, mike amansfield QC twice has argued police officers were killed in self defence seeing cases collPsed, both the acquitted in later cases, faced murder/Attempted murder charges, Mark Lambie in 2002 and Kenneth note, cleared of killing cop John Fordham in 1984′ and then found guilty of killing Steven acameron in the M25 in 2004′ in the latter case, Note brought up in court, you’re in,y prosecuting me because I was cleared of killing PAC Fordham last time,of which, the judge said we haven’t even. Fought it up as releavent,you brought it up

    Judge if they feel the prosecution evidence isn’t safe and can be secretly contradicted,such as the accuser was drunk,will acquit,same as in the Evans case if the judge felt the testimony of previous lovers was relevant and couldn’t use it,he’d have acquitted again,

  18. Proof that you can be a lawyer and a very very stupid person.
    Or is Harman stupid?
    No, malicious opportunist more like.
    One who sees the law not as a tool for justice but to manipulate and enforce her own social engineering.
    In short, a scoundrel.

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