Sexual History Evidence and Impact on Belief in Consent: R v Gjoni (Kujtim) [2014] EWCA Crim 691

Abstract

Keywords

Rape Consent Honest and reasonable belief Sexual behaviour Youth Justice and Criminal Evidence Act 1999

The appellant (G) and some other men had been drinking and taking cocaine at the home of the complainant (CH). During the course of the night, G asked CH whether she would have sexual intercourse with him. She refused and then became angry when asked by G how much money she would charge for sex. CH and her boyfriend (K) later went upstairs and had sexual intercourse, after which CH fell asleep and K returned downstairs to rejoin the others. CH claimed that she awoke to find G having sexual intercourse with her at which point she struggled. G ignored her protests. CH claimed that K and another man (L) were standing by the bed in their boxer shorts watching and made no attempt to intervene. CH then ran downstairs screaming. This alerted her neighbour and best friend who could hear CH shouting, ‘Get off me, get out of my house’. The men quickly got dressed and left. As they were leaving CH asked K why he did not intervene to help her to which he replied, ‘You probably enjoyed it’.

At trial G applied under s. 41 of the Youth Justice and Criminal Evidence Act 1999 to adduce evidence of a conversation between G and L during which L told G that he had had sexual intercourse with CH while K was in the house and with K's consent. The trial judge ruled that details of the conversation could not be relayed to the jury because to do so would introduce evidence of CH's previous sexual behaviour. It was, however, permissible for G to adduce evidence that his belief in CH's consent had been formed on the basis of what he was told by L. G appealed, contending that details of the conversation should have been admitted and that the refusal by the trial judge to do so impacted on the safety of the verdict.

Held, dismissing the appeal , although circumstances might exist in which evidence of a conversation between the defendant and a third party might be relevant to the issue of honest and reasonable belief in consent, each case must be decided on its own facts (R v Bahador [2005] EWCA Crim 396 considered). Given that details of the conversation could not be admitted unless it was necessary to do so under s. 41(2)(b) of the 1999 Act, the decision by the trial judge to prohibit details of the conversation was correct on the basis that full disclosure would not have improved G's standing in the eyes of the jury. It was sufficient for G to adduce evidence that, despite CH's anger at the suggestion that money might change hands in return for sexual intercourse, his belief arose from repeated assurances given by L that CH would consent when he entered the bedroom. L's revelation to G that sexual intercourse had taken place between L and CH did not justify a belief held by G, particularly in the light of CH's earlier refusal to consent to sexual intercourse with G.

Even if the trial judge had erred by refusing leave to admit details of the conversation, this did not render the verdict unsafe. Disclosure of L's claims to have previously engaged in consensual sexual intercourse with CH would have no material effect upon the jury's consideration of the question of who was telling the truth in relation to what allegedly occurred between G and CH. Moreover, had the jury learned of L's claim, this would have resulted in a firm direction by the judge regarding the effect which that evidence might have had upon its consideration of G's claim to an honest and reasonable belief in consent (at [34]).

Commentary

Section 41 of the Youth Justice and Criminal Evidence Act 1999 introduced stringent statutory measures in order to restrict the use of evidence of the complainant's previous sexual behaviour in sexual offence proceedings. Admissibility of sexual history evidence is now governed by several ‘gateways’ contained in s. 41(3) and (5). Section 41(3)(a) applies if the evidence or question concerning the complainant's previous sexual behaviour ‘relates to a relevant issue in the case and … that issue is not an issue of consent’. Section 42(1)(b) expressly states that ‘an issue of consent … does not include any issue as to the belief of the accused that the complainant so consented’. As a consequence, fears were raised that s. 41(3)(a) would create a ‘substantial loophole in the law’ (L. Kelly, J. Temkin and S. Griffiths, Section 41: An Evaluation of New Legislation Limiting Sexual History Evidence in Rape Trials, Home Office Online Report 20/06 (at para. 14)) by permitting evidence of the complainant's previous sexual behaviour, regardless of any time restriction or connection to events giving rise to the charge, provided it was considered relevant to the defendant's belief in consent. Such concerns were exacerbated by the controversial pre-1999 Act decision in DPP v Morgan [1976] AC 182. Hailed by feminist reformers as the ‘rapist's charter’ (J. Temkin, ‘Sexual History Evidence—Beware the Backlash’ [2003] Crim LR 217 at 217), Morgan declared that a defendant's honest but unreasonable belief in consent would suffice for a defence to rape.

Section 1(1)(c) of the Sexual Offences Act 2003 has effectively replaced the Morgan defence by imposing a requirement that the defendant's belief in consent must now be reasonable. The circumstances in which sexual history evidence might be relevant to the defendant's belief in consent are now, arguably, far more restricted than would have been the case prior to the 2003 Act. In R v Bahador [2005] EWCA Crim 396, Lord Woolf recognised the distinction by suggesting that ‘honest belief and reasonable belief are very different things’ (Bahador at [12]). In assessing whether the defendant's belief is reasonable, however, s. 1(2) of the 2003 Act requires consideration of ‘all the circumstances, including any steps that A has taken to ascertain whether B consents’ (emphasis added). This raises an issue concerning the complainant's previous sexual behaviour and its relevance (if any) to the range of circumstances envisaged in s. 1(2).

During the passage of the Sexual Offences Bill through Parliament, Vera Baird MP suggested that the wording of the clause which resulted in s. 1(2) ‘should focus the court's attention on what is happening at the time of the offence, and … make the previous sexual history of the complainant far less relevant’ (Sexual Offences Bill, House of Lords, Select Committee Debate (B), 9 September 2003, col. 21). In R v Barton (1986) 85 Cr App R 5—heard under s. 2 of the Sexual Offences (Amendment) Act 1976 and during a period in which evidence of the complainant's previous sexual behaviour was admitted far more freely than it is today—there is a suggestion that courts were already aware of the potential for abuse of the belief in consent defence and took a robust approach to the admissibility of sexual history evidence. O'Connor LJ noted that, ‘[i]t must be remembered that there is a difference between believing that a woman is consenting to intercourse and believing that a woman will consent if advances are made to her’ (Barton at [13]). In this respect, two points merit consideration in the context of the present case. The first affirms the position that ‘consent’ is taken to mean consent to a particular person, not consent to a particular set of circumstances. Consent must be sought afresh on each occasion of sexual activity. Notwithstanding G's purported belief in consent arising from what had allegedly transpired earlier between his friend and the complainant, there was sufficient evidence to contradict the appellant's belief that the complainant would have been prepared to consent to sexual intercourse with him, notably the complainant's refusal when asked by the appellant if she would have sexual intercourse with him and her subsequent anger at the suggestion that she might do so in exchange for money.

The second point applies to those cases where, as in the present case, there are diametrically opposed versions of events given by the defence and prosecution. The contention here is that in circumstances in which the prosecution argues that the complainant had struggled and fought back during the alleged assault, the issue will be one of actual consent on the basis that there will be little or no scope to raise the defence of belief in consent. In R v A (No. 2) [2001] UKHL 25, Lord Steyn remarked that in such cases ‘the defence of belief in consent would often have no air of reality and would in practice not be available’ (A (No. 2) at [35]). This analysis reinforces the point made by O'Connor LJ and affirms the position that the complainant's previous conduct pertaining to the defendant's belief in consent fades into insignificance when compared to the complainant's conduct at the time of the alleged assault and the impact it makes on the accused's mindset during the alleged assault. In Bahador, the appellant argued that his belief in consent arose from the complainant's earlier sexually explicit behaviour on a nightclub stage. Despite recognising that ‘it is difficult to say that what he contended to have taken place on the stage could not be relevant’ (Bahador at [12]), the court adhered to a strict interpretation of the s. 41 leave requirements with particular regard to the ‘unsafe test’ in s. 41(2)(b), which provides that the court may not grant leave unless it is satisfied that a refusal to do so might have the effect of ‘rendering unsafe a conclusion of the jury … on any relevant issue in the case’. The court observed that further evidence in the form of a positive response given by the appellant's friend when asked by the appellant if the complainant ‘was up for it’ (Bahador at [14]) had far more impact on the appellant's mindset and belief regarding the complainant's willingness to consent than the impact made by the complainant's earlier conduct in the nightclub.

Despite concerns which arose from the decision in A (No. 2) that s. 41 of the 1999 Act would be given a liberal interpretation, the decision in the present case demonstrates that trial judges take a firm approach to the admissibility of sexual history evidence. The present case supports the contention that although the demands of the defendant's fair trial rights under Article 6 of the European Convention on Human Rights might occasionally call for a relaxed interpretation of s. 41, judges remain committed to upholding a basic principle that evidence concerning the complainant's sexual behaviour with third parties will be allowed only in exceptional cases. This approach reinforces the view taken by Lord Hope in A (No. 2) itself that ‘[e]vidence or questions about sexual behaviour with third parties is likely to be much harder to justify on grounds of relevancy than evidence about sexual behaviour with the defendant’ (A (No. 2) at [77]). In the present case, it was concluded that the evidential restraints imposed on the conversation between G and L did not have the effect of ‘rendering unsafe a conclusion of the jury … on any relevant issue in the case’ under s. 41(2)(b). The decision can be taken as authority for the proposition that even in cases where the evidence falls within one the s. 41 gateways, the requirement of s. 41(2)(b), which ultimately determines whether the evidence will be received, will prove to be a very difficult hurdle for the defendant to overcome.