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Sexual offences (Recent Complaint Rule (Historically, victims of sexual…

- - - - D charged with sexual offence
      - Evidence is sought to be adduced 'about any sexual behaviour of the complainant'
    - - Any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding...anything alleged to have taken place as part of the event which is the subject matter of the charge
        
        R v Ben Rejab [2011], D adduced evidence of the complainant doing sexual quizzes on facebook and it was allowed as there was no other motive for the quizzes other than sexual pleasure
        
        Evidence of previous false accusations does not class as sexual behaviour R v T [2001]
    - - A refusal of leave might have the effect of rendering unsafe a conclusion of the court or jury on any relevant issue in the case
      - One of the four gateways applies
        
        s41(3)(b): The evidence relates to a relevant issue in the case and the issue is consent and the alleged behaviour is alleged to have taken place at or about the same time as the event in issue
        
        s41(5): The behaviour relates to and rebuts evidence adduced by the prosecution about the complainant's sexual behaviour
        
        s41(3)(a): The evidence relates to a relevant issue in the case and the issue is not an issue of consent
        
        An issue of consent means any issue whether the complainant in fact consented so the following are not issues of consent and don't require leave
        
        Denial act was committed by the accused
        
        Denial that act took place
        
        Belief in consent
        
        s41(3)(c): The issue is consent and the behaviour is so similar either to behaviour which according to the evidence took place as part of the event or behaviour which took place at or about the same time as that event, that the similarity cannot reasonably be explained as coincidence
        
        Cannot include just causal sex whilst drunk ( R v Harris 2009)
        
        Can include particular sexual practices in distinctive locations (R v T 2004)
        
        Can include sexual practices combined with particular words of encouragement ( R v Evans 2016)
        
        Article 6 Compatibility
        
        Judge must consider the convention rights when determining whether to allow evidence to be admitted under this gateway
        
        The test of admissibility is whether the evidence is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the convention. If this test is satisfied the evidence should not be excluded (R v A [2001])
- - - - Quality of W evidence is likely to be diminished if D is allowed to XX and improved if D is prohibited to do so
      - It would not be contrary to the interests of justice