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University of New South Wales Law Journal Student Series |
‘DISTINCTLY BRITISH’: HUMAN RIGHTS THINKING IN A DEEPLY ENTRENCHED COMMON LAW SYSTEM
SARAH GORE
The House of Lords in R v A (no 2) (‘R v A’) was tasked to determine whether the complainants’ sexual history could be adduced into evidence on the issue of consent.[1] The Lords sought to engage in a human rights-based interpretation, weighing up any infringement of the right to fair trial to the defendant. In examining the reasons of the House of Lords, it is suggested that attempting to incorporate human rights thinking was always going to be futile due to the foundation of the legal system in the United Kingdom (‘UK’).
Rape shield laws were enacted in the UK to restrict the admission of evidence of prior sexual encounters with the accused, in going to the issue of consent in sexual assault trials. In R v A, the accused sought to adduce evidence of his prior sexual encounters with the complainant to, in essence, suggest that because of those prior encounters, the complainant was more likely to consent to the alleged rape in question. Their Lordships agreed.
There are several factors behind how the Lordships came to the conclusion they did. First, the manner in which the Human Rights Act 1998 (UK) (‘Human Rights Act’) was enacted limited the Court’s ability to conduct rights-based thinking, relying instead on precedents. Second, their Lordships, being a product of their environment, attributed patriarchal moral standards to their interpretation of what constituted relevant evidence. Third, their Lordships failed to pay due regard to the rights of the victim and in doing so failed to engage in a comprehensive rights-based interpretation.
Enacting a rights-based approach to a thousand-year-old common law system built on oppressive patriarchal colonising foundations was optimistic at best.
The human rights of citizens of the UK have traditionally been woven through the common law, a system bound by precedent.
After the Norman Conquest in the 11th century, King William the Conqueror - who was himself appointed King by the Christian God - appointed judges to adjudicate writs. Those decisions became binding on the court, and as such the common law in the UK was developed. Interestingly, for approximately 500 years before the Norman Conquest, Anglo-Saxon women enjoyed a high level of self-determination including land ownership and participation in the legal system.[2]
With the enactment of statutes from parliament the common law system developed precedents of statutory interpretation. Along with the doctrine of precedent, the common law favours a conservative or traditional approach to statutory interpretation, placing emphasis on the intention of the parliament and ordinary meaning.[3]
Classic utilitarians like Bentham and Mill argue the doctrine of precedent promotes ‘certainty, foreseeability and stability’,[4] with ‘social policies to be determined on the basis of what approach would be conducive to the greatest happiness for the greatest number of people.’[5]
Human rights-based reasoning counters this, by placing the individual at the centre of policy and justice.[6] Gans et al states that ‘the very purpose of human rights is to defend individuals from particular conduct, which though not in the individual’s interest may benefit the majority.’[7]
Such reasoning is infamously encapsulated by Blackstone: ‘[i]t is better that ten guilty persons escape than one innocent suffer.’[8]
While deontologists may argue that the doctrine of precedent promotes ‘equality before the law’,[9] a human rights-based approach may be considered to be more equitable than equal. With the foundation of common law based in a structurally oppressive system of power that serves to disenfranchise, among a long list, women, a human rights approach attempts to balance the rights of everyone.’
In the 1990s, the UK Parliament sought to embed human rights more firmly into the fabric of the law. Rather than implementing a statutory bill of rights, the Parliament chose to give effect to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘Convention’).[10] This was done through the Human Rights Act 1998 (UK) (‘Human Rights Act’) whereby the UK judiciary would interpret and apply the Convention.[11]
Rights theorist Dworkin heavily supported this two-part system, believing that bringing the Convention into the UK judiciary would create a ‘distinct British Scheme of human rights and liberty’ determining cases ‘in terms of principle and less in terms of narrow precedent.’[12]
The European Court of Human Rights (‘Strasbourg Court’) adjudicates disputes under the Convention and in following a rights-based approach, is not strictly bound by the doctrine of precedent. Instead, to promote consistency, the Court held it ‘should not depart, without good reason, from precedents laid down in previous cases’.[13]
The Human Rights Act attempted to mirror this system, discarding the strict doctrine of precedent.[14] Under the Human Rights Act, domestic courts must not act contrary to the Convention,[15] and must take into account the decisions of the Strasbourg Court.[16] However, the Human Rights Act ‘does not expressly address the situation where there is conflict between a domestic precedent and the later jurisprudence of the [Strasbourg Court]’.[17] This ambiguity created a question that had to be answered by the judiciary. In 2006, Lord Bingham held that domestic precedents that have contemplated the Convention are strictly binding.[18] Pattison argues this interpretation was mistaken and ‘gives too much weight to domestic precedents that are inconsistent with subsequent decisions of the [Strasbourg Court]’.[19] The way the Human Rights Act was interpreted presented unique challenges when interposed in a thousand-year-old common law system. This is the foundation in which the Lords in R v A arrived at their decision.
R v A involved an allegation of sexual assault against the accused, ‘A’. A first met the complainant with a friend and flatmate, ‘B’ in May 2000. The complainant began dating B. A few weeks later, the complainant was visiting B and A in their apartment. While there, the complainant had sex with B. Later that night, B collapsed and was taken to hospital. The complainant and A walked to the hospital, along the riverbank.
The Crown’s case was that A tripped, and when the complainant went to help him up, A pulled her down to the ground and raped her. The complainant reported the rape to police the following day.[20]
According to A, the complainant was the one who initiated sex with him, which was part of a continuing sexual relationship covering the three weeks prior to the night in question.[21]
At a pre-trial hearing, the defendant sought leave under s 41 of the Youth Justice and Criminal Evidence Act 1999 (UK) (‘YJCE Act’) to adduce evidence of the previous sexual history between him and the complainant with the most recent consensual encounter occurring a week prior to the assault.[22]
Section 41 of the YJCE Act prevents (a) evidence being admitted and (b) questions being asked in cross-examination, that related to the complainant’s prior sexual behaviour.
There are four exceptions under section 41 in which evidence or questions may be admitted. First where the evidence is relating to an issue which is not an issue of consent.[23] Second, where the evidence relates to the issue of consent but the sexual behaviour is alleged to have taken ‘at or about the same time’ as the incident in question.[24] Third, where the evidence relates to the issue of consent, and the prior sexual behaviour is so similar to the behaviour by the complainant, that the similarity cannot be reasonably explained as a coincidence.[25] Finally, where the evidence or questions are rebuttal to evidence raised by the prosecution.[26]
At first instance, the trial judge in R v A held that evidence about the complainants’ prior sexual history with the accused was impermissible under s 41. The trial judge noted that this is likely an infringement on the defendant’s right to fair trial and as such granted leave to the accused to appeal.[27]
On appeal, the Court of Appeal held that such evidence, while inadmissible on the issue of consent, might be able to be admitted under the first exception in section 41, in evidencing the defendant’s honest belief as to consent.[28]
On the final appeal, the House of Lords conclusively held that s 41 of the YCJE Act infringed on the right of an accused to present relevant evidence to the court, and as such, using their powers under s 3 of the Human Rights Act, the statute was read down with a strained interpretation.[29] The matter was remitted back to trial using the new interpretation of s 41.
While Lord Hope seemed to disagree that there was any infringement in the present case, he nevertheless agreed with his Lordships in permitting the trial judge to rely on their reading of s 41, ‘if to do so would ensure a fair trial’.[30]
In the judgment, the House of Lords made three key decisions which led to the radical interpretation of the YJCE Act:
(1) ‘A prior consensual sexual relationship between a complainant and the defendant might, in the circumstances of an individual case, be relevant to the issue of consent.’[31]
(2) ‘An accused’s right to fair trial was absolute and exclusion of such relevant evidence would be impeding on his human rights.’[32]
(3) Section 41(3)(c) should be read as ‘whether the evidential material was nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6'.[33]
Much of the discussion in R v A was centred on whether evidence relating prior sexual relationships could be probative to whether the victim consented to the incident in question.
The law has long treated the female rape victim with a high degree of suspicion, which Orenstein traces back to biblical times.[34] Sex outside of marriage made a woman promiscuous, therefore being more likely to have consented to the rape, and far less credible as a witness.[35]
The feminist liberation movements in the 1970s and 1980s arose partly in response to the treatment of rape victims at trial, with the goal to ‘amend both the substantive and procedural law concerning rape’.[36]
In the UK, this second wave of feminism resulted in the enactment of the Sexual Offences (Amendment) Act 1976 (UK) (‘Sexual Offences Act’), which aimed to put an end to the ‘twin myths’: the belief that a woman who had sex on other occasions increased the probability she consented to the alleged rape, and that she was less likely to be telling the truth.[37] Ultimately, this Act ‘invested considerable discretion in trial judges in making determinations of relevance.’[38]
Ellison notes that it was not long before it emerged that newly inadmissible evidence was being tendered and accepted by courts regardless.[39] Often evidence was being admitted without seeking leave and with little to no objection from the judge or prosecution.[40] Applications to admit this evidence were being made in forty per cent of cases of sexual assault and were successful three-quarters of the time.[41] The Sexual Offences Act failed in its asserted mission.
With an increased representation of women[42] in law schools and the legal profession, and greater awareness of gender issues, the YJCE Act was enacted in 1999.[43]
Broadly speaking, s 41 of the YJCE Act gives victim-witnesses in sexual offence proceedings protection by restricting both evidence and questioning about their previous sexual history.[44] This is subject to set exceptions, with leave of the court.
Despite the progress in society around awareness of sexual assault, feminist scholars describe legal issues around rape and rape shield laws to remain ‘fraught’.[45]
The defendant submitted that evidence of prior sexual encounters ‘increase[d] the prospect that subsequent sexual conduct may have been consensual’.[46] In reply, the Department of Public Prosecution submitted that simply put, ‘previous sexual history does not, of itself, have sufficient probative weight.[47]
The Law Lords in R v A held that evidence of prior sexual encounters tendered on the issue of consent that was inadmissible because of s 41, was nevertheless probative and relevant to the defendant’s case.
Lord Hope disagreed that the evidence in the case before them was relevant, but suggested there was a possibility of such evidence existing. The other Lords strongly concluded such evidence was probative as to the issue of consent. Lord Slynn opined that the public would ‘find it strange’ that evidence of previous sexual acts in a relationship would be ‘wholly excluded on the issue of consent unless it is immediately contemporaneous’.[48] Lord Steyn called it ‘common sense’ that such evidence may be relevant to the issue of consent, ‘to what decision was made on a particular occasion’.[49] Lord Clyde came to the same conclusion. Lord Hutton emphatically supported the repudiation of the twin myths, and then opined the complete opposite:
‘... [W]here there has been a recent affectionate relationship between a woman and a man, that one cannot say that the fact that she has consented previously is relevant in deciding whether she consented when there was intercourse with the same man a relatively short time later.’[50]
Lord Hope recognised that the most frequent type of rape is that where the parties are known to each other and have a history, which goes directly against the assumptions made by the other Lords:[51] ‘[E]vidence of such behaviour cannot in itself be regarded as logically probative of either the complainant’s credibility or consent.’[52]
In concluding his position, Lord Steyn left it to trial judges to determine where the line ought to be drawn between admissible ‘logically relevant sexual experiences’ and other ‘previous sexual experiences between a complainant and an accused e.g. an isolated episode distant in time and circumstances’.[53] Essentially, Lord Steyn re-enacted the Sexual Offences Act.
The beliefs that underpin the decision made by the House of Lords are deeply entrenched in the legal system which heralds patriarchal standards. Feminist scholars described the reasoning in R v A as ‘unsatisfactorily obscure’.[54]
Such obscurity is nevertheless clear to those disenfranchised by the patriarchy. While significant progress has been made in society since the establishment of rape shield laws in the 1970s, O’Hara notes that ‘judicial constructs and stereotypes of sexuality remain unchanged’.[55]
The bench in R v A was comprised of five Lords; Lord Slynn of Hadley, Lord Steyn, Lord Hope of Craighead, Lord Clyde and Lord Hutton. All of these Lords are cis-gender, highly educated, wealthy, white, men. There was indeed no possibility of a woman on the bench in R v A as it predated the first woman Law Lord.[56]
These Lords were educated and worked in an era which supported dangerously sexist assumptions. All born in the 1930s, the Lords were all called to the Bar between 1954 and 1965. In her feminist judgement of R v A, McGlynn speaks of Professor Glanville Williams, whose ‘contribution to the development of the criminal law is undoubted’.[57] Professor Williams wrote in his 1983 book Textbook on Criminal Law that women welcome a ‘masterly advance’ and may ‘present a token of resistance’.[58] In his 1963 book The Proof of Guilt, he concluded that ‘these cases are particularly subject to the danger of deliberately false charges, resulting from sexual neurosis, phantasy, jealousy, spite or simply a girl’s refusal to admit that she consented to an act of which she is now ashamed.’ [59]
Ellison explains:
[A]s Madame Justice L’Heureux-Dubé notably observed in the Canadian case of R v Seaboyer, ‘particularly vulnerable to the application of private beliefs’ as trial judges draw upon their own personal experience, ‘common sense’, and understanding about human conduct and motivation to decide whether one fact is logically connected or pertinent to another.[60]
Such patriarchal views are so deeply entrenched that they infiltrate even those who are affected by them. In his research of feminism on the bench, Fielding noted that one woman judge referred to the rape shield provision which aims to protect complainants, at the centre of R v A as ‘that ludicrous stuff about rape, previous sexual experience of the complainant, completely unjust [to the defendant]’.[61] As Hunter explains, ‘women have been “let in” to the judiciary on condition of conformity to the prevailing (masculine) ethos, and any hint of failure to conform would call into question their qualification to be a judge’.[62]
With a deep-seeded sexism within the judiciary and legal system, it is then clear how the Lords reached the next decision. Turning to the right to a fair trial, the Law Lords considered whether the inadmissibility of evidence violated article 6 of the Convention.[63]
Before the Human Rights Act, the protection of a fair trial was held in the common law as the right not to be tried unfairly. Gans et al describes this ‘fine point of distinction’ from the framing in human rights-based instruments as ‘of significant practical importance’.[64] At common law, Gans et al states the common law rights rely on the language of appeal, in particular, a ‘miscarriage of justice’ – a consequentialist view of the protection of the right.[65]
The right to fair trial under the Human Rights Act is contained in article 6 of the Convention.[66] There was some disagreement on the bench in R v A as to whether such right was absolute or qualified.
The Secretary of State submitted that ‘although article 6 guarantees the right to a fair trial, the rules on the admissibility of evidence are a matter for the national law’.[67] This position is supported by the Strasbourg Court.[68]
Lord Hope concurred with this position, outlining that ‘the right to lead evidence and the right to put questions with which that section deals are not among the rights which are set out in unqualified terms in article 6 of Convention’.[69] ‘Article 6 does not give the accused an absolute and unqualified right to put whatever questions he chooses to the witnesses’ Lord Hope concluded.[70]
Gans et al in discussion of article 14 of the International Covenant on Civil and Political Rights (‘ICCPR’),[71] the sister right of article 6 of the Convention, stated that the bundle of rights that encompass the right to fair trial are not absolute ‘because its component parts may sometimes be displaced by countervailing rights of those involved in the trial process or by wider societal interests, such as national security’.[72]
However, the majority Law Lords took a different approach to article 6, rather viewing the right as incapable of being dissected. Lord Steyn stated that the notion article 6 is absolute is ‘well established’,[73] while Lord Hutton concluded that the right ‘is an absolute right which cannot be qualified by considerations of public interest, no matter how well founded that public interest may be’.[74]
The House of Lords determined that the evidence attempting to be adduced was excluded by the YCJE Act and therefore moved to weighing up the Defendant’s right to a fair trial against these supposed limitations of section 41 of the YJCE Act.
Whether such limitation was proportional, according to Lord Steyn, rested on the test outlined in Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing (‘De Freitas’)[75] which was:
whether
a) the legislative objective is sufficiently important to justify limiting a fundamental right;
b) the measures designed to meet the legislative objective are rationally connected to it; and
c) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.[76]
Lord Steyn remarked that s 41 ‘poses an acute problem of proportionality.’[77] He opined that ‘[w]hilst the statute pursued desirable goals, the methods adopted amounted to legislative overkill’ (emphasis added).[78]
To Lord Hope, those ‘desirable goals’ were more like ‘legitimate aim[s]’.[79] Those aims included the reluctance of victims to report rape, the rule of law that those who commit crimes should be brought to justice, and the protection of the ‘essential witness from unnecessary humiliation or distress’.[80]
In her feminist judgement of R v A, McGlynn supported Lord Hope’s position[81] adding another important and overlooked aim: ‘the promotion of accuracy in fact-finding and rectitude in decision-making, which are fundamental aims of evidence law’.[82]
While Lord Hope initially crossed into an assessment of proportionality in a rights-based approach, he swerved back into a more conservative approach by analysing the intention of Parliament. Lord Hope concluded that s 41 was ‘designed in such a way as to balance the competing interests of the complainant who seeks protection from the court and the accused's right to a fair trial’.[83] Kavanagh critiqued this analysis, citing it to be judicial deference. [84]
By now, the Law Lords have determined that evidence relating to prior sexual occurrences was relevant to consent and that by denying the admission of that evidence, s 41 of the YJCE Act infringed on the accused’s right to a fair trial.
In determining how to rectify such infringement, the Lords looked to their powers under s 3 of the Human Rights Act.
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.[85]
Lord Steyn submitted that the court does not have to read and give effect to s 41 in a ‘reasonable’ way, just a ‘possible’ one.[86] ‘Parliament specifically rejected the legislative model of requiring a reasonable interpretation’, meaning the interpretation can be ‘linguistically strained’ if necessary, Lord Steyn stated.[87] He asserts this on the basis that Parliament would never have intended ‘to deny the right to an accused to put forward a full and complete defence by advancing truly probative material’ (emphasis added).[88]
Agreeing with this approach, Kavanagh contends that ‘[p]arliament has chosen to enact a human rights document in broad, general terms which sanctions judicial discretion to flesh out its content in individual cases’.[89]
The court held in R v A that s 41 was to be read as:
whether the evidence (and questioning in relation to it) 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.[90]
In extending the reach of the courts’ powers of statutory interpretation, Lord Hope was concerned this approach would veer into legislative territory, stating that a rule of interpretation ‘does not entitle the judges to act as legislators’.[91] Lord Hope said he ‘would find it very difficult to accept’ that the court could read article 6 into s 41.[92]
Lord Hope’s opinions appear rooted in conservative legal interpretation, being cautious about the extension of the courts’ traditional role through s 3 of the Human Rights Act. According to Kavanagh, ‘critics of the decision [of R v A] echoed Lord Hope’s worries about contravening express statutory terms and legislative intent.’[93]
The opinions of the remaining Lords have been hailed as ‘legally innovative’, with Lord Steyn notably adopting a more radical approach to s 3.[94] Such radical an approach has not been seen since R v A, with McGlynn stating it was ‘commonly accepted that R v A represents a ‘high water mark’ for the s 3 interpretative obligation’.[95]
While academics call Lords like Lord Steyn ‘legal innovators’, they fundamentally failed to engage in an actual rights-based interpretation. In a considered rights interpretation, deliberation must be had as to the ‘ranking, status and framing of the rights, as well as in decisions by the Strasbourg Court’.[96]
In R v A, the Law Lords failed to pay due regard to the human rights of the complainant and downplaying the considerations for limitation of the defendants rights.
The life, liberty and security of witnesses and victims are protected in article 8 of the Convention, and other substantive provisions of the Convention, which
imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify. [97](emphasis added)
Further, as suggested by McGlynn, the bench failed to mention the promotion of fact-finding and truth in balancing the scales.[98] Lord Steyn distilled all the considerations of limiting the right to fair trial to: ‘the importance of seeking to protect the complainant from indignity and humiliating questions.’[99] This is a clear underqualification of such considerations, founded in ingrained views of women.
The basis of the majority Lords opinion was concerned not with the matter at hand and the direct evidence before them, but with hypothetical scenarios and whether such scenarios would eventuate in a miscarriage of justice. This thinking directly mimics a common law rights interpretation. The Lords were thinking in a manner that their decision would be strictly binding on lower courts.
The decision in R v A highlights an issue where traditionally common law judges ‘take an overly mechanical approach leading to a neglect of the moral principles that underpin rights discourse’.[100]
Their Lordships in R v A failed to engage in rights-based interpretation of the situation before them. By interpreting relevance on patriarchal standards and omitting the other rights within the Convention relevant to the matter before them, the Lords wholly misunderstood the purpose of a rights-based interpretation.
The scales of Lady Justice were always going to tip in favour of the defendant in R v A. The common law right to not be tried unfairly, which it is suggested their lordships were considering instead of the Convention, ‘was developed to protect the accused from an overbearing and authoritarian state’.[101] This context no longer defines the right and fails to consider the rights of the victim and the community.[102] The legislature enacted statute that abolished the wide judicial discretion in respect to evidence of prior sexual encounters. Their Lordships reinstated it.[103]
The 2021 Independent Human Rights Act Review Panel firmly stated that ‘the House of Lords undercut entirely a recently enacted rape-shield provision, restoring the free judicial discretion to allow cross-examination of complainants in sexual offence cases which discretion Parliament had deliberately curtailed.’[104]
The way the Human Rights Act was drafted appeared on the outside to be a revolutionary rights-based approach to law. The reality is that such rights are still heavily submerged in common law and patriarchal and colonial standards. As such, the Human Rights Act was vulnerable to interpretations seemingly disguised as human rights based but steeped in the colonial patriarchy. In fairness to Dworkin, this feels distinctly British.
[1] [2002] 1 AC 45 (‘R v A (no 2)’).
[2] Christine Clark, ‘Women’s Rights in Early England’ (1995) 1995(1) BYU Law Review 207, 222.
[3] Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge University Press, 2009) 2.
[4] Shaun D Pattinson, ‘The Human Rights Act and the Doctrine of Precedent’ (2018) 35(1) Legal Studies 142, 148.
[5] Jeremy Gans et al, Criminal Process and Human Rights (The Federation Press, 2011) 59.
[6] Ibid 60.
[7] Ibid.
[8] Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol 2, ed George Sharswood (J.B. Lippincott Co, 1893) 358.
[9] Pattinson (n 4) 148.
[10] Helen Fenwick, Roger Masterman and Gavin Phillipson, ‘The Human Rights Act in contemporary context’ in Gavin Phillipson, Helen Fenwick and Roger Masterman (eds), Judicial Reasoning under the UK Human Rights Act (Cambridge University Press, 2007) 1, 1; Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (‘Convention for the Protection of Human Rights and Fundamental Freedoms’).
[11] Human Rights Act 1998 (UK) (‘Human Rights Act’).
[12] Ronald Dworkin, A Bill of Rights for Britain (Chatto & Windus, 1990) 23 quoted in Roger Masterman, ‘Aspiration or Foundation? The Status of the Strasbourg Jurisprudence and the ‘Convention rights’ in Domestic Law’ in Gavin Phillipson, Helen Fenwick and Roger Masterman (eds), Judicial Reasoning under the UK Human Rights Act (Cambridge University Press, 2007) 57‑, 59.
[13] Beard v the United Kingdom (Merits Judgment) (2001) Eur Court HR 42, [81].
[14] David Bonner, Helen Fenwick and Sonia Harris-Short, ‘Judicial Approaches to the Human Rights Act’ [549] (2008) 52(3) International and Comparative Law Quarterly 549, 556.
[15] Human Rights Act (n 11) s 6(1).
[16] Ibid s 2(1).
[17] Pattinson (n 4) 143.
[18] Kay v Lambeth LBC; Leeds CC v Price [2006] UKHL 10, [40] (‘Kay v Lambeth LBC; Leeds CC v Price’).
[19] Pattinson (n 4) 164.
[20] R v A (no 2) (n 1) [18].
[21] Ibid [19].
[22] Ibid [20].
[23] Youth Justice and Criminal Evidence Act 1999 (UK) s 41(3)(a) (‘Youth Justice and Criminal Evidence Act’).
[24] Ibid s 41(3)(b).
[25] Ibid s 41(3)(c).
[26] Ibid s 41(5).
[27] R v A (No 2) (n 1) [21].
[28] R v A [2001] EWCA Crim 4 (‘R v A’).
[29] R v A (No 2) (n 1) 45–6.
[30] Kavanagh (n 3) 27.
[31] R v A (No 2) (n 1) 45[H]. Note: Lords Steyn, Slynn, Hutton and Clyde agreeing, Lord Hutton dissenting in relation to this point.
[32] Ibid 46[A].
[33] Ibid 46[B].
[34] Aviva Orenstein, ‘The Seductive Power of Patriarchal Stories’ (2014) 58 Howard Law Journal 411, 413.
[35] Ibid 414.
[36] Ibid.
[37] R v Seaboyer [1991] 2 SCR 577, 604 (‘R v Seaboyer’).
[38] Louise Ellison, ‘Commentary on R v A (No 2)’ in Rosemary Hunter, Clare McGlynn and Erika Rackley (eds), Feminist Judgments: From Theory to Practice (Hart Publishing, 2010) 205, 205.
[39] Ibid 216.
[40] Ibid 217.
[41] Ibid 216.
[42] Note: Women involved in this movement were white, able-bodied, cis-gender, and middle-upper class.
[43] Youth Justice and Criminal Evidence Act (n 23).
[44] Ibid s 41.
[45] Emily K O’Hara, ‘Deviant Interpretations: Re-Evaluating the Evidentiary Admissibility of a Complainant’s Prior Group Sexual Acts’ (2022) 63(7) Boston College Law Review 2309, 2310.
[46] R v A (No 2) (n 1) 51[C].
[47] Ibid 49[B].
[48] Ibid [10].
[49] Ibid [31].
[50] Ibid [151].
[51] Ibid [52].
[52] Ibid [76].
[53] Ibid 45.
[54] Ellison (n 38) 208.
[55] O’Hara (n 45) 2339.
[56] Ellison (n 38) 206.
[57] Clare McGlynn, ‘R v A (No 2) – Judgment’ in Rosemary Hunter, Clare McGlynn and Erika Rackley (eds), Feminist Judgments: From Theory to Practice (Hart Publishing, 2010) 211, 212.
[58] Ibid citing Glanville Williams, Textbook of Criminal Law (Stevens, 2nd ed, 1983) 238.
[59] McGlynn (n 57) 212 citing Glanville Williams, The Proof of Guilt, a Study of the English Criminal Law (Stevens & Sons, 3rd ed, 1963) 159, 238.
[60] Ellison (n 38) 206.
[61] Nigel G Fielding, ‘Judges and Their Work’ (2011) 20 Social & Legal Studies 97, 110 as quoted in Rosemary Hunter, ‘More than Just a Different Face? Judicial Diversity and Decision-Making' (2015) 68(1) Current Legal Problems 119, 127.
[62] Hunter (n 61) 127.
[63] Convention for the Protection of Human Rights and Fundamental Freedoms (n 10) art 6.
[64] Gans et al (n 5) 382.
[65] Ibid.
[66] Convention for the Protection of Human Rights and Fundamental Freedoms (n 10) art 6.
[67] R v A (No 2) (n 1) 50[C].
[68] Schenk v Switzerland (1988) EHRR 242, [46] (‘Schenk v Switzerland’); European Court of Human Rights, Guide on Article 6 of the European Convention on Human Rights (Guide, 31 August 2022), [220].
[69] R v A (No 2) (n 1) [58].
[70] Ibid [91]
[71] International Convention on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 14 (‘International Convention on Civil and Political Rights’).
[72] Gans et al (n 5) 49.
[73] R v A (No 2) (n 1) [38].
[74] Ibid [161].
[75] Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1998] UKPC 30; [1999] 1 AC 69 (‘De Freitas’).
[76] Ibid [80] as cited in McGlynn (n 57) 225.
[77] R v A (No 2) (n 1) [30].
[78] Ibid [43].
[79] Ibid [92].
[80] Ibid.
[81] McGlynn (n 57) 212–13.
[82] Ibid 214.
[83] R v A (no 2) (n 1) [72].
[84] Kavanagh (n 3) 204.
[85] Human Rights Act (n 11) s 3(1).
[86] R v A (No 2) (n 1) [44].
[87] Ibid.
[88] Ibid [45].
[89] Aileen Kavanagh, ‘The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998’ (2004) 24(2) Oxford Journal of Legal Studies 259, 268.
[90] R v A (No 2) (n 1) [46].
[91] Ibid [108].
[92] Ibid.
[93] Kavanagh (n 3) 25.
[94] Bonner, Fenwick and Harris-Short (n 14) 555.
[95] Clare McGlynn, ‘Challenging the Law on Sexual History Evidence :A Response to Dent and Paul’ (2018) 3 Criminal Law Review 216, 225.
[96] Gans et al (n 5) 52.
[97] Doorson v the Netherlands [1996] EHRR 330, [70] (‘Doorson v the Netherlands’) quoted in McGlynn, ‘R v A (No 2) - Judgment' (n 57) 224.
[98] McGlynn, ‘R v A (No 2) – Judgment’ (n 57) 214.
[99] R v A (No 2) (n 1) [43].
[100] Harriet Samuels, ‘Feminizing Human Rights Adjudication: Feminist Method and the Proportionality Principle’ (2012) 21(1) Feminist Legal Studies 39, 41.
[101] McGlynn, ‘R v A (No 2) – Judgment’ (n 57) 224.
[102] Ibid.
[103] Danny Nicol ‘Are Convention Rights a No-Go Zone for Parliament?’ (2002) Public Law 438, 278 as quoted in Kavanagh (n 3) 26.
[104] Sir Peter Gross et al, Ministry of Justice, The Independent Human Rights Act Review (Final Report, 14 December 2021) 193.
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