| CRIME — Sexual offences — Complainant’s sexual history — Statutory restriction on calling evidence and cross-examination of complainant on sexual history — Whether still in force following amending legislation — Effect of absence of savings provision — Youth Justice and Criminal Evidence Act 1999, ss 41, 62 — Sexual Offences Act 2003, s 139, Sch 6, para 141
Regina v Cartwright [2007] EWCA Crim 2581
CA: Sir Igor Judge P, Pitchford and Openshaw JJ: 7 November 2007
The restrictions imposed by s 41 of the Youth Justice and Criminal Evidence Act 1999 on the calling of evidence of, and cross-examination as to, complainants’ sexual history applied to trials conducted after the coming into force of the Sexual Offences Act 2003, in respect of sexual offences allegedly committed before that date, even though the latter statute failed to contain a saving provision specifically to that effect.
The Court of Appeal, Criminal Division, so held in dismissing an appeal by Kevin Cartwright against his conviction on 9 February 2007 at Stafford Crown Court (Judge Glenn and a jury) of offences of rape, indecent assault on a female and assault occasioning bodily harm. He was sentenced on 5 March 2007 to 42 months’ imprisonment and was required to comply with the provisions of Pt 2 of the Sexual Offences Act 2003.
The Youth Justice and Criminal Evidence Act 1999 provides by s 41: “(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—(a) no evidence may be adduced, and (b) no question may be asked in cross-examination by, or on behalf of any accused at the trial, about any sexual behaviour of the complainant.”
“Sexual offence” was defined in s 62(1) of the 1999 Act, but the 2003 Act provided by s 139 and para 41 of Sch 6 that that definition should be “substituted” by a different definition, identifying sexual offences as being any offence under Pt 1 of the 2003 Act. That suggested that, for the purposes of s 41 of the 1999 Act, the former meaning of sexual offence was replaced by the new. But s 41 itself was neither amended nor repealed. The question was whether, on a trial taking place after the 2003 Act came into force, but for an offence taking place before that date, s 41 was in effect disapplied.
SIR IGOR JUDGE P, giving the reserved judgment of the court, said the appellant had relied on a literal reading of the 2003 Act and the fact that the definition of the offence of rape in that Act differed from rape as previously defined, and on the observation of Judge Morrison, sitting in the Crown Court at Birmingham, in R v Warner (unreported) 5 June 2007 that: “as a matter of plain reading s 41 does not apply to trials after 1 May 2004 unless it relates to an offence contemplated in Pt I of the Sexual Offences Act 2003.” The question to be addressed, as part of the interpretative process, was whether such an uncovenanted absurdity could possibly have reflected the legislative purpose of the statute. S 41 of the 1999 Act was procedural or evidential. When enacted, it represented a further development of the statutory process by which complainants in sexual cases had been given greater protection against the deployment at trial of material relating to their sexual history. The protective features of s 41 had not been repealed, nor disapplied, nor amended; rather, they had been extended to the newly defined and extended range of offences contained in the 2003 Act. S 41 remained in full force. When the 2003 Act was enacted s 41 continued to apply to trials for sexual crimes which took place before the 2003 Act was implemented. Unfortunately, the draftsman, while ensuring that s 41 protection applied to sexual offences as extended by the new legislation, omitted to make express provision to preserve it for the old. The word “substitute” was deployed when the legislation intended to extend rather than restrict or extinguish the important statutory protection for complainants. The vacuum could readily have been filled by a short saving provision stating expressly what was plainly implied or understood, that after the 2003 Act came into force, s 41 would continue to apply to trials of offences which took place before that date. The absence of a provision did not lead to the conclusion that legislation expressly designed to make new provisions for the prevention of sexual offences somehow disapplied the protection provisions of the 1999 Act to trials involving this particular group of complainants. The decision of Morrison J in R v Warner should not be followed. In their Lordships’ judgment, s 41 applied to the appellant’s trial.
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