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.