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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
    1. R v A [2001] UKHL 25; [2002] 1 AC 45; [2001] 3 All ER 1; [2001] 2 WLR 1546
    2. Re S (Minors) (Care order: implementation of care plan) [2002] UKHL 10: [2002] 2 All ER 192
    3. Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467; [2003] 2 All ER 593
    4. Ghaidan v Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 All ER 411
    5. Aston Cantlow...Parochial Church Council v Wallbank and another [2003] UKHL 37, [2003] 3 All ER 1213
    6. R (on the application of Beer) v Hampshire Farmers Market Ltd [2004] 1 WLR 233
    7. Wainwright and another v Home Office [2003] UKHL 53, [2004] 2 AC 406, [2003] 4 All ER 969
    8. YL v Birmingham City Council and others [2007] UKHL 27, [2008] 1 AC 95
    9. R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100; [2006] 2 WLR 719
    10. Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, [2007] 1 WLR 1420
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v A [2001] UKHL 25; [2002] 1 AC 45; [2001] 3 All ER 1; [2001] 2 WLR 1546


[17] My Lords, in December 2000 the respondent (the defendant) was due to stand trial in the Crown Court on an indictment charging him with an offence of rape, the particulars being that on 14 June 2000 he raped the complainant. The defendant's defence is that sexual intercourse took place with the complainant's consent. It appears that he will alternatively rely on the defence that he believed that she consented.....

V. Section 41 of the Youth Justice and Criminal Evidence Act 1999

[29] Sections 41 to 43 of the 1999 Act imposed wide restrictions on evidence and questioning about a complainant's sexual history. These provisions are contained in Ch III of Pt II of the statute and appear under the heading 'Protection of Complainants in Proceedings for Sexual Offences'. The material part of s 41 reads:

'(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.....

Section 41 imposes the same exclusionary provisions in respect of a complainant's sexual experience with the accused as with other men. This is the genesis of the problem before the House. There are differences which need to be explored

VI. Sexual experience with the accused contrasted with sexual experience with other men

[30] Although not an issue before the House, my view is that the 1999 Act deals sensibly and fairly with questioning and evidence about the complainant's sexual experience with other men. Such matters are almost always irrelevant to the issue whether the complainant consented to sexual intercourse on the occasion alleged in the indictment or to her credibility. To that extent the scope of the reform of the law by the 1999 Act was justified. On the other hand, the blanket exclusion of prior sexual history between the complainant and an accused in s 41(1) of that Act, subject to narrow categories of exception in the remainder of s 41, poses an acute problem of proportionality.

[31] As a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent.....

[38] It is well established that the guarantee of a fair trial under art 6 is absolute: a conviction obtained in breach of it cannot stand: R v Forbes [2001] 1 All ER 686 at 697, [2001] 2 WLR 1 at 13 (para 24). The only balancing permitted is in respect of what the concept of a fair trial entails: here account may be taken of the familiar triangulation of interests of the accused, the victim and society. In this context proportionality has a role to play. The criteria for determining the test of proportionality have been analysed in similar terms in the case law of the Court of Justice of the European Communities and the European Court of Human Rights. It is not necessary for us to re-invent the wheel. In De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 80, [1998] 3 WLR 675 at 684 Lord Clyde adopted a precise and concrete analysis of the criteria. In determining whether a limitation is arbitrary or excessive a court should ask itself-

'whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.'

The critical matter is the third criterion. Given the centrality of the right of a fair trial in the scheme of the convention, and giving due weight to the important legislative goal of countering the twin myths, the question is whether s 41 of the 1999 Act makes an excessive inroad into the guarantee of a fair trial.

[39] Subject to narrow exceptions s 41 is a blanket exclusion of potentially relevant evidence....

[44] On the other hand, the interpretative obligation under s 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature (see R v DPP, ex p Kebeline [1999] 4 All ER 801 at 831, 837, [2000] 2 AC 326 at 366, 373 per my judgment and that of Lord Cooke of Thorndon respectively). The White Paper made clear that the obligation goes far beyond the rule which enabled the courts to take the convention into account in resolving any ambiguity in a legislative provision (see Rights Brought Home: The Human Rights Bill (Cm 3782 (1997)) para 2.7). The draftsman of the 1998 Act had before him the slightly weaker model in s 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 of the 1998 Act places a duty on the court to strive to find a possible interpretation compatible with convention rights. Under ordinary methods of interpretation a court may depart from the language of the statute to avoid absurd consequences: s 3 goes much further. Undoubtedly, a court must always look for a contextual and purposive interpretation: s 3 is more radical in its effect. It is a general principle of the interpretation of legal instruments that the text is the primary source of interpretation: other sources are subordinate to it; compare, for example, arts 31 to 33 of the Vienna Convention on the Law of Treaties (Vienna, 23 May 1969, TS 58 (1980); Cmnd 7964). Section 3 of the 1998 Act qualifies this general principle because it requires a court to find an interpretation compatible with convention rights if it is possible to do so. In the progress of the Bill through Parliament the Lord Chancellor observed that 'in 99 per cent of the cases that will arise, there will be no need for judicial declarations of incompatibility' (see 585 HL Official Report (5th series) col 840) and the Home Secretary said 'We expect that, in almost all cases, the courts will be able to interpret the legislation compatibility with the Convention' (see 306 HC Official Report (6th series) col 778). For reasons which I explained in a recent paper, this is at least relevant as an aid to the interpretation of s 3 of the 1998 Act against the executive ('Pepper v Hart; A Re-examination' (2001) 21 OJLS 59). In accordance with the will of Parliament as reflected in s 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained. The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so. If a clear limitation on convention rights is stated in terms, such an impossibility will arise (R v Secretary of State for the Home Dept, ex p Simms [1999] 3 All ER 400 at 413, [2000] 2 AC 115 at 132 per Lord Hoffmann). There is, however, no limitation of such a nature in the present case.

[45] In my view s 3 of the 1998 Act requires the court to subordinate the niceties of the language of s 41(3)(c) of the 1999 Act, and in particular the touchstone of coincidence, to broader considerations of relevance judged by logical and commonsense criteria of time and circumstances. After all, it is realistic to proceed on the basis that the legislature would not, if alerted to the problem, have wished to deny the right to an accused to put forward a full and complete defence by advancing truly probative material. It is therefore possible under s 3 of the 1998 Act to read s 41 of the 1999 Act, and in particular s 41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under art 6 of the convention should not be treated as inadmissible. The result of such a reading would be that sometimes logically relevant sexual experiences between a complainant and an accused may be admitted under s 41(3)(c). On the other hand, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, eg an isolated episode distant in time and circumstances. Where the line is to be drawn must be left to the judgment of trial judges. On this basis a declaration of incompatibility can be avoided. If this approach is adopted, s 41 will have achieved a major part of its objective but its excessive reach will have been attenuated in accordance with the will of Parliament as reflected in s 3 of the 1998 Act. That is the approach which I would adopt.


[106].... I consider that it has not been shown that, if the ordinary principles of statutory construction are applied to them, the provisions of s 41 of the 1999 Act which are relevant to the respondent's case are incompatible with his convention right to a fair trial. I would hold that the question whether they are incompatible cannot be finally determined at this stage, as no attempt has been made to investigate the facts to the required level of detail to show that s 41 has made excessive inroads into the convention right. It seems to me that it is neither necessary nor appropriate at this stage to resort to the interpretative obligation which is described in s 3 of the 1998 Act in order to modify, alter or supplement the words used by Parliament. I think that it would only be appropriate to resort to surgery of that kind in this case if the words used by Parliament were unable, when they were given their ordinary meaning, to stand up to the test of compatibility....

[108] I should like to add, however, that I would find it very difficult to accept that it was permissible under s 3 of the 1998 Act to read into s 41(3)(c) of the 1999 Act a provision to the effect that evidence or questioning which was required to ensure a fair trial under art 6 of the convention should not be treated as inadmissible. The rule of construction which s 3 lays down is quite unlike any previous rule of statutory interpretation. There is no need to identify an ambiguity or absurdity. Compatibility with convention rights is the sole guiding principle. That is the paramount object which the rule seeks to achieve. But the rule is only a rule of interpretation. It does not entitle the judges to act as legislators. As Lord Woolf CJ said in Poplar Housing and Regeneration Community Association Ltd v Donaghue [2001] EWCA Civ 595, [2001] 19 EGCS 141, s 3 of the 1998 Act does not entitle the court to legislate; its task is still one of interpretation. The compatibility is to be achieved only so far as this is possible. Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible. It seems to me that the same result must follow if they do so by necessary implication, as this too is a means of identifying the plain intention of Parliament (see Lord Hoffmann's observations in R v Secretary of State for the Home Dept, ex p Simms [1999] 3 All ER 400 at 412.

[109] In the present case it seems to me that the entire structure of s 41 of the 1999 Act contradicts the idea that it is possible to read into it a new provision which would entitle the court to give leave whenever it was of the opinion that this was required to ensure a fair trial. The whole point of the section, as was made clear during the debates in Parliament, was to address the mischief which was thought to have arisen due to the width of the discretion which had previously been given to the trial judge.


Is s 41 of the 1999 Act, on ordinary principles of construction, incompatible with the right to a fair trial given by art 6 of the convention?

[160] In Brown v Stott (Procurator Fiscal, Dunfermline) [2001] 2 All ER 97, [2001] 2 WLR 817 the Judicial Committee of the Privy Council considered the circumstances in which a particular right given by art 6 of the convention may be qualified by considerations of the public interest which Parliament has taken into account in enacting the statutory provision under consideration; in that case the public interest being the need to address in an effective way the high incidence of death and injury on the roads caused by the misuse of motor vehicles. But it is clear that in relation to a fair trial certain rights are absolute and cannot be qualified. Lord Bingham of Cornhill stated:

'. . . there is nothing to suggest that the fairness of the trial itself may be qualified, compromised or restricted in any way, whatever the circumstances and whatever the public interest in convicting the offender. If the trial as a whole is judged to be unfair, a conviction cannot stand. What a fair trial requires cannot, however, be the subject of a single, unvarying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done.' (See [2001] 2 All ER 97 at 104-105, [2001] 2 WLR 817 at 825.)


'The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within art 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for.' (See [2001] 2 All ER 97 at 115, [2001] 2 WLR 817 at 836.)

Lord Hope of Craighead stated:

'A similar approach to the function of the rule of law can be seen in the fact that the court has consistently recognised that, while the right to a fair trial is absolute in its terms and the public interest can never be invoked to deny that right to anybody under any circumstances, the rights which it has read into art 6 are neither absolute nor inflexible.' (See [2001] 2 All ER 97 at 129.)

[161] In the type of case which I have instanced where a man, who may be innocent, wishes to give evidence of previous acts of sexual intercourse with the complainant in the course of a recent close and affectionate relationship, such evidence would be a central and essential part of his defence, and I consider that to deny him the opportunity to cross-examine the complainant and to give such evidence would compromise the overall fairness of the hearing and would deny him the essence of a fair trial. In my opinion the right of a defendant to call relevant evidence, where the absence of such evidence may give rise to an unjust conviction, is an absolute right which cannot be qualified by considerations of public interest, no matter how well founded that public interest may be. This right is well described in the argument of counsel for the appellants as set out by McLachlin J in R v Seaboyer, R v Gayme [1991] 2 SCR 577 at 607-608:

'The right of the innocent not to be convicted is reflected in our society's fundamental commitment to a fair trial, a commitment expressly embodied in s. 11(d) of the Charter. It has long been recognized that an essential facet of a fair, hearing is the "opportunity adequately to state [one's] case." . . . The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution. As one writer has put it: "If the evidentiary bricks needed to build a defence are denied the accused, then for that accused the defence has been abrogated as surely as it would be if the defence itself was held to be unavailable to him." (Doherty "Sparing the Complainant 'Spoils' the Trial" (1984) 40 CR (3d) 55 at 67.) In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled. The defence which the law gives with one hand, may be taken away with the other. Procedural limitations make possible the conviction of persons who the criminal law says are innocent.'

Therefore I would hold on ordinary principles of construction that s 41 is incompatible with the right to a fair trial given by art 6.

Under s 3 of the 1998 Act can s 41 of the 1999 Act be read and given effect in a way which is compatible with the right to a fair trial given by art 6 of the convention?

[162] Section 3(1) provides: 'So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.' (My emphasis.) As my noble and learned friend Lord Steyn stated in R v DPP, ex p Kebeline [1999] 4 All ER 801 at 831, [2000] 2 AC 326 at 366, this subsection enacts a strong interpretative obligation, and Lord Cooke of Thorndon ([1999] 4 All ER 801 at 837, [2000] 2 AC 326 at 373), described the subsection as an adjuration. It is clearly desirable that a court should seek to avoid having to make a declaration of incompatibility under s 4 of the 1998 Act unless the clear and express wording of the provision makes this impossible.

[163] I have observed (at [159]) that on ordinary principles of construction and having regard to the change in emphasis in R v P [1991] 3 All ER 337, sub nom DPP v P [1991] 2 AC 447 away from 'striking similarity' to 'probative force' there is a possible argument that relevant evidence of a previous close and affectionate relationship in which sexual intercourse took place is admissible under s 41(3) of the 1999 Act. Therefore pursuant to the obligation imposed by s 3(1) of the 1998 Act that s 41 must be read and given effect in a way which is compatible with art 6 of the convention, I consider that s 41(3)(c) should be read as including evidence of such previous behaviour by the complainant because the defendant claims that her sexual behaviour on previous occasions was similar, and the similarity was not a coincidence because there was a causal connection which was her affection for, and feelings of attraction towards, the defendant. It follows that I am in full agreement with the test of admissibility stated by my noble and learned friend Lord Steyn at [46] of his speech.....