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Reviewing the law on sexual history evidence

Celia Marr and Jennifer Ross discuss proposals to re-examine section 41, a recent case on the defence of diminished responsibility, and new reforms to police powers

21 March 2017

In the wake of the Ched Evans retrial in October last year, it has been announced that the government will conduct a review of the operation of section 41 of the Youth Justice and Criminal Evidence Act 1999 in sexual offence cases.

Section 41 governs the admissibility of evidence relating to the sexual history of the complainant in sexual offence trials. It prohibits the introduction of such evidence except with the leave of the court, which must be satisfied, first, that the (main) purpose of its admission is not to impugn the credibility of the complainant and, second, that without it the safety of the jury’s conclusion on a relevant issue may be compromised.

Further, any such material can be introduced only through one of the four ‘gateways’ set out in subsections (3) and (5). In the Ched Evans retrial, new evidence of the complainant’s sexual beha...

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