R. v A (Complainant's Sexual History): The Case of Shielded (Alleged) Rapist

R. v A (Complainant's Sexual History)
[2001] H.R.L.R. 48
House of Lords
17 May 2001

Brief Summary:

The respondent was on trial for rape and his defense was that the complainant either consented to the sexual intercourse or he believed that she had consented.  He wished to question her at a preparatory hearing regarding the fact that they had had a previous sexual relationship.  However, he was prevented from doing so by the judge under section 41 of the Youth Justice and Criminal Evidence Act 1999, which, among other things, prevents a complainant's past sexual history from being introduced as evidence.  The respondent argued before the House of Lords that section 41 of the Act was incompatible with Article 6 of the ECHR (right to a fair trial) because it prevented him from introducing evidence that would assist in his defense.  The House of Lords agreed and reinterpreted section 41 under section 3 of the HRA to include a balancing test where the privacy of the complainant would be weighed against the defendant's ability to have a fair trial under Article 6.  If excluding the evidence would impair the defendant's right to a fair trial, the evidence must be allowed. 

The Facts:

In December 2000 the respondent was due to stand trial for rape. He alleged that for approximately three weeks prior to the date of the alleged rape, he and the complainant had a sexual relationship. His defense was that sexual intercourse took place with the complainant's consent or, alternatively, that he believed she consented.

At a preparatory hearing, counsel for the respondent applied for leave to cross-examine the complainant about the alleged previous sexual relationship between the complainant and the respondent and to lead evidence about it. Relying on section 41 of the Youth Justice and Criminal Evidence Act 1999, the judge ruled that the complainant could not be crossexamined, nor could evidence be led, about her alleged sexual relationship with the defendant and that the prepared statement could not be put in evidence. The respondent was given leave to appeal this decision, based on the ruling's possible conflict with Article 6.  The respondent did so.

Human Rights Argument:

The respondent argued that by excluding the evidence of his prior sexual relationship with the complainant, we was denied a fair trial under Article 6 because he was prevented from presenting exculpatory evidence.  The House of Lords noted that the mere fact that section 41 excludes some relevant evidence would not by itself amount to a breach of the fair trial guarantee. On the other hand, if the impact of section 41 is to deny the right to accused in a significant range of cases from putting forward full and complete defences it may amount to a breach.

The Holding:
According to the House of Lords, test of admissibility under section 41(3)(c) of the Act was whether the evidence (and questioning in relation to it) was nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under Article 6 of the ECHR. Section 41(3)(c) already allowed evidence where the prior sexual history was so similar to the complained act that the similarity could not be dismissed as coincidence.  The House Lords decided to expand section 41(3)(c)'s language to include  broader considerations of relevance judged by logical and common sense criteria of time and circumstances.

More specifically, the House of Lords decided to read section 41, and in particular section 41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under Article 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 section 41(3)(c). On the other hand, the Lords noted, there will be cases where previous sexual experience between a complainant and an accused will be irrelevant, e.g. an isolated episode distant in time and circumstances. Finally, it was left to the discretion of the trial judges to draw that line. 

Villain?
Tough to say.  An accused rapist who may have reasonably believed that the complainant was consenting.  Based on the complainant's statement - they were walking to the hospital to visit their friend and he pulled her to the ground on the towpath by the river - it looks pretty sketchy to me.  I'll call this one a villain.

R. (on the application of H) v Mental Health Review Tribunal, North & East London Region: The Case of the Detained Schizophrenic -

R. (on the application of H) v Mental Health Review Tribunal, North & East London Region

[2001] EWCA Civ 415

Court of Appeal (Civil Division)

28 March 2001

Brief Summary:

The appellant argued that his right to liberty under Article 5 was violated by the Mental Health Review Tribunal, who denied his request for discharge.  He argued that the standard used by the Tribunal under the Mental Health Act 1983 -  that he was no longer suffering from a mental illness that made it appropriate for him to be detained and that he was no longer a danger to the public - impermissibly placed the burden of proof on him to prove that he was eligible for discharge.  The Court of Appeal agreed with the appellant and issued a declaration of incompatibility.

The Facts:

The appellant, a schizophrenic, was convicted of manslaughter in 1988 and was ordered to be detained in Broadmoor Hospital subject to special restrictions pursuant to the Mental Health Act 1983 (“the Act”).  Two psychiatrists testified at the appellant's hearing that his illness was being managed by medication and that he could be moved to a medium-security facility with no danger to the public.  However, the appellant's request for discharge was denied by the Mental Health Review Tribunal and and his judicial case was dismissed.  He appealed to the Court of Appeals.

It is notable that the Secretary of State intervened in the case and requested, should the court find the Act incompatible with the ECHR, that the court issue a declaration of incompatibility rather than use Section 3 of the HRA to interpret the Act.

Human Rights Argument:

The appellant argued that his right to liberty under Article 5 of the ECHR had been violated.  He argued that the Mental Health Review Tribunal acts as “a court” when it determines whether to discharge a patient and, therefore, Article 5 applied to his hearing.  He then argued that section 73 of the Act requires that the patient prove that (1) he is not suffering from a mental illness or psychopathic disorder which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; and (2) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment.  The appellant argued that this standard effectively places the burden of proof on him, which violates his right to liberty under Article 5.

The Holding:

The court issued a declaration of compatibility.  The court held that  it was contrary to Articles 5(1) and (4) of the ECHR to detain a patient compulsorily unless it could be reliably shown that the patient was suffering from a mental disorder sufficiently serious to warrant detention.   The current standard impermissibly placed the burden of proof on the patient to prove that he was not suffering from a mental illness and he was not a danger to the public.  The court also noted that a proper burden of proof would not necessarily require that a patient be discharged just because he was on medication and no longer a threat.  If there is a risk that the patient, when not being given his medication in a controlled environment, might relapse and again be a danger to the public, that patient could remain detained through a showing that the interests of the public outweighed the interests of the patient.

Villain?

The appellant did commit manslaughter but did so due to mental illness.  He was also seeking to be moved to a less restricted facility and not necessarily to be released into the public.  Not an easy call but I think he's not a villain.

Venables v News Group Newspapers Ltd - The Case of Child Killers

Venables v News Group Newspapers Ltd
[2001] H.R.L.R. 19
Family Division 

8 January 2001

Brief Summary:
The two petitioners had been convicted of murdering a young boy when they were also children.  As the reached the age of majority, they sought to renew the injunctions preventing the media from releasing information relating to their identities.  They feared that if that information were released, the notoriety of their crime would cause them to be pursued by members of the public, which would interfere with their family lives and their safety.  The court ultimately found that the risk to the petitioners' rights under Articles 2, 3, and 8 of the ECHR outweighed the media defendants' rights to expression under Article 10.  The injunctions were issued.

The Facts:
The two petitioners killed a two-year-old boy when they were 10 years old.  The facts and the circumstances of the murder were particularly shocking and distressing and were widely publicised in the media. They were convicted of the murder and detained as minors until they were 18 years old, at which time they were to be paroled.  At that time, they sought to continue an injunction against media groups from publishing information regarding their identities, appearances, and locations.

Human Rights Argument:
The claimants argued that the rights to life, the prohibition on torture, and the right to family and private life in Articles 2, 3 and 8 of the Convention required that the injunctions remain in force.  They argued that there was clear evidence of a specific, preventable, serious and continued threat to their lives, and a real likelihood that the press intended to publish the information.  The defendants argued that Article 10's right to freedom of expression gave them the right to publish this information.  In response, the petitioners relied on the confidential information exception to free expression in Article 10 .

The Holding:

The court balanced the petitioners' Articles 2, 3 and 8 rights against the defendants Article 10 rights. Using evidence provided by the petitioners' families (of threats to themselves and pressure from the media for information) and excerpts from media coverage from the time of the murder trial, the court found that the risk to the petitioners' lives was substantial enough to issue the injunctions.  More specifically, the court found that the injunctions were (1) in accordance with the law, (2) necessary in a democratic society to satisfy a strong and pressing need, and (3) proportionate to the legitimate aim pursued.  The court therefore granted injunctions to prevent the media in England and Wales from publishing information relating to the identity and whereabouts of the claimants, and (for 12 months) relating to the secure units in which they were held. This injunction included information that had entered the public domain via the internet and other media outside the court's jurisdiction.

Villains?
The two petitioners in this case committed a reprehensible crime against a child while they themselves were children.  Moreover, they sought to protect their own lives from members of the public bent on revenge.  Despite the sympathy I feel towards them because they were so young when their crime was committed, I will err on the side of villainy due to the horrific nature of their crime.  Villains.

Re Crawley Green Road Cemetery, Luton - The Case of the Re-buried Husband

Re Crawley Green Road Cemetery, Luton,
[2001] H.R.L.R. 21
Consistory Court of St Albans
2 December 2000

Brief Summary:
The petitioner sought to have her husband's body exhumed, cremated and re-buried in non-consecrated grounds, which would be more in keeping with the petitioner's (and her husband's) humanist beliefs.

The Facts:
The ashes of the petitioner's husband were buried in a consecrated position in Crawley Green Road Cemetery, Luton. The funeral ceremony had been humanist one because neither the deceased nor his wife had any Christian allegiance.  The petitioner had been unaware that the plot was consecrated. Following the funeral, the petitioner moved from Luton and was forced to travel in order to visit her husband's grave. The petition requested that the remains be reinterred at a location closer to her present home and in a manner compatible with her religious beliefs.

Human Rights Argument:
The petitioner argued that her husband was originally buried in a manner that she found at odds with the family's humanist beliefs.  Requiring him to remain there violated her Article 9 right to manifest her religion or beliefs.  The government argued that burying her husband's ashes in non-consecrated ground would offend the religious beliefs of Christians and those beliefs should be balanced against the petitioner's.

The Holding:
The petitioner has the right "to remove her husband's ashes from a place where their burial are, at least in her eyes, hypocritical and contrary to her humanist beliefs."  Humanist beliefs are entitled to the same Article 9 protection as more conventional religions.  Moreover, the fact that Christians might be upset by the burial in non-consecrated grounds does not outweigh her concerns.  The court ordered the body exhumed. 

Villain?
A humanist widow who wants her husband buried in a manner that reflected his beliefs and to be able to visit her husband's grave more easily?  No villain here.

Brabazon-Drenning v United Kingdom Central Council for Nursing Midwifery and Health Visiting - The Case of the Bad Nurse

Brabazon-Drenning v United Kingdom Central Council for Nursing Midwifery and Health Visiting, [2000] All ER (D) 1620

Queen's Bench Division (Divisional Court)

31 October 2000

Brief Summary

A nurse and nursing home owner was charged with, among other things, failing to adequately staff her nursing home.  She was too depressed and anxious to attend her hearing and so the hearing proceeded without her.  She alleged, among other things, that Article 6 (right to a fair hearing) was violated because she was not given the opportunity to defend herself at the hearing and that the hearing should have been postponed until she was well enough to attend.  The court agreed that Article 6 had been breached.

The facts: 

The appellant was the owner of the Firs Nursing and Residential Home in Redruth, Cornwall. The home was a registered home for 18 nursing and 12 residential beds. The appellant was required to have a registered nurse on duty at all times, together with a number of care assistants.

On September 6, 1997, two registration officers from the area health authority inspected the premises. They found no registered staff on duty, and also that certain women had been administering medication in the absence of a registered nurse. After several complaints from registration officers regarding a shortage of staff were sent to the appellant in September and October 1997, the home was finally closed on October 17, 1997.

The disciplinary hearing was to take place on November 30, 1999. The Preliminary Proceedings Committee informed the appellant of the charges, the nature of the evidence against her, and recommended that she should seek representation.  Before the hearing could take place, letters were sent to the PCC from the appellant's mother and general practitioner that stated that appellant was suffering from mixed anxiety/depression related to the closure of the Firs Nursing Home, and that she would not be able to attend the hearing and that it should be rescheduled for a few months in the future.  An officer also spoke with the appellant who stated she was not mentally able to proceed at that time.  The PCC was aware of these communications and proceeded with the hearing in the appellant's absence.

The charges against the appellant were: 

(1) Permitting untrained staff to administer medication. 

(2) Permitting the practice of medication being potted up in advance of being administered. 

(3) Failing to ensure that there was a proper registered nurse covering for a morning shift when she was absent. 

(4) Being not contactable when she was the first level nurse on call. 

(5) Failing to ensure that the home had trained nurse cover

(6) Failing to be registered between September 1 and April 22, 1997. 

Appellant was found guilty of all six charges.

Human Rights Argument:

The appellant argued that the PPC should have adjourned the hearing so as to permit the appellant to be represented and to appear. The failure to do so involved a breach of Article 6 of the European Convention on Human Rights.

The Holding:

The court found that there were no overriding public interest considerations which should have deprived the appellant of a basic right to be present when the case was put against her, and to be in a position where she could either cross-examine herself, or have a representative with whom she could communicate cross-examine on her behalf. It was a breach both of the principles of natural justice and Article 6. 

Villain? 

This nurse and nursing home owner should have taken adequate steps to ensure that her nursing home was adequately staffed.  However, there were no allegations of abuse of her patients and she, overall, appears to be a very sympathetic party.  Definitely not a villain.