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REDRESSING THE BALANCE
Cross-Examination in Rape and Sexual Offence Trials
A Pre-Legislative Consultation Document
EXECUTIVE SUMMARY
The objective of this paper is to seek views on proposals to
change the law of evidence in relation to two specific issues:-
- to prevent the accused in rape and other sexual offence cases from personally
cross-examining the complainer;
- to strengthen the provisions restricting the extent to which evidence can
be led regarding the sexual history and character of the complainer.
Cross-examination by the Accused Personally
Four options are discussed:-
- requiring the accused to be represented for the cross-examination of the
complainer;
- giving the court discretion to require the accused to be legally represented
in particular circumstances;
- requiring the accused to be legally represented throughout the trial; and
- requiring the questioning of the complainer to be done by the Judge.
The Executive is inclined towards Options 1 or 3, with the
preferred option in policy terms being Option 3. There are however potential
ECHR difficulties with Option 3. Views of respondents on all 4 options
are sought.
Sexual History and Character Evidence
The paper seeks views on a number of possible changes to the
law in this area. These are:-
- a new approach to the question of the admissibility of evidence of other
sexual activity of the complainer, based on the approach taken by the Canadian
Criminal Code, which requires the court to weigh the relevance and probative
value of evidence against an assessment of any prejudicial effect it may have;
- a new approach to issues of credibility of the complainer, again drawing
from the Canadian model;
- requiring applications for the admission of sexual history or character,
and the reasons for granting such applications, to be in writing;
- determining the admissibility of such evidence by means of a "trial
within a trial";
- abolishing the existing exemption which allows the Crown to introduce evidence
about the complainer’s sexual history or character without first seeking
the approval of the court;
- making the issue of consent a special defence, so that the accused has to
intimate that this will be his defence before the trial starts; and
- automatic disclosure of any sexual offence convictions of the accused, where
the accused has made a successful application to lead evidence about the complainer’s
sexual history or character.
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