Press Release – Section 41 Report
In October 2017 The Criminal Bar Association (CBA) commissioned an independent report into section 41 of the Youth Justice and Criminal Evidence Act 1999. This section prohibits questioning as to previous sexual behaviour in sexual offence cases unless certain tests of admissibility are met. Angela Rafferty QC, the then Chair of the CBA, commissioned the study following the Ched Evans judgment,R v Evans (Chedwyn)  EWCA Crim 452,  4 WLR 169,  Crim LR 406. This case has led to considerable and continuing public debate about cross-examination in sexual offence cases
The survey was designed with the help of the CBA Working Party on section 41: Sarah Vine (Chair), Mary Aspinall-Miles, and Alisdair Williamson QC. This group continues its work on this important legislative provision.
Laura Hoyano, (Associate Professor of Law, University of Oxford, Senior Research Fellow, Wadham College, Oxford) carried out the research. She is a barrister and tenant of Red Lion Chambers, and a member of the Criminal Bar Association. However the data analysis and conclusions are the independent findings of Professor Hoyano without any input from the CBA, its officers or the Section 41 Working Party.
The report analyses results from a survey of responses from 140 practising criminal barristers who had prosecuted and defended (66% in both roles) in their ten most recent cases. This produced a research sample of 377 cases involving 565 complainants, which proceeded to trial in 105 Crown Courts centres in the 24 months immediately prior to November 2017. It is the largest and most detailed peer-reviewed empirical study of its kind. The case sample encompassed all sexual offences, all genders, and all age groups of complainants, from adults to children under 13.
We hope the findings of this report will allow further informed debate. This is not a straightforward area of law. Its complexities involve the balancing of the rights of defendants and those of complainants in often extremely difficult and emotive circumstances.
We are very grateful to Professor Hoyano for her detailed, scrupulous and evidence-based work.
Chris Henley QC, chair of the Criminal Bar Association said: “I would like to thank my colleagues across the Criminal Bar for their participation in this important independent survey and analysis. This report is the result of many months of hard work and dedication. It provides the first solid and comprehensive evidence base which will better inform public understanding on this profoundly important issue and serve the needs of policymakers and the wider criminal justice system in the months and years ahead.”ends
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