Cross Examination on complainant. Sexual offences. (law of Evidence) - Essay Example

Section 41 establishes the shield and the exception. Section 42 defines what is relevant and generally deals with the interpretation and application of the shield in Section 41. Section 43 deals with the proper procedure for exercising the Section 41 discretion to remove or reduce the shield. Lord Steyn noted in R v A (No. 2) the freedom of cross-examination of rape complainants was based on stereotypes and generalizations that were exploited by defendants. The result was an excessively low rate of convictions and it unnecessarily put rape complainants under scrutiny and humiliation.

Section 41 extends the shield to all sexual offences which by virtue of Section 62 include rape and all other sexual offences. In considering whether or not to grant leave to cross-examine on the complainant’s sexual behaviour, sexual behaviour under Section 42(1)(c) includes any sexual behaviour or experience unless it forms a part of the issues at trial relating to the accused. However, in R v T the court offered some flexibility with respect to defining what amounts to sexual behaviour which obviously challenges the concept that the shield goes too far and prejudices a fair trial.

In R v T it was held that sexual behaviour would not include evidence of false complaints or failure to complain. This kind of evidence would not be evidence of sexual behaviour but is evidence of previous statements or previous omissions to lodge a complaint. Moreover, it was held in R v Garaxo that the judge had a duty to allow cross-examination on previous complaints against others where it could harm the complainant’s credibility. Nevertheless in R v White it was held that cross-examination of a complainant’s promiscuous behaviour such as prostitution, was not relevant to the complaint at issue.

Regardless there are safeguards that attempt to create some balance between what is relevant and what is not and thus ensures the trial is not unfairly prejudiced. In this regard, a safeguard was established under R v Martin as to what is relevant behaviour for the purposes of Section 41(3). In Martin it was ruled that it was wrong to exclude cross-examination of the complainant on her previous behaviour with the accused in circumstances where it was alleged that she had begged the defendant for sex and had performed oral sex on him.

This kind of evidence goes to motivations for concocting allegations against the defendant. It would also appear that once leave is granted to cross-examine the complainant, the court does not have the discretion to restrict its admission. In R v F it was held that where the judge allowed the defendant to cross-examine a complainant on the nature of their adult consensual relationship he erroneously excluded cross-examination on evidence showing the complainant appeared happy engaging with the defendant.

The evidence was relevant as it showed the actual adult relationship and thus relevant to the authenticity of a complaint about abuse childhood abuse. In R v Mokrecovas, Lord Woolf cautioned that Section 41(3)(a) should not be exploited for sole purpose of damaging the complainant’s credibility. The Court of Appeal ruled that where there was enough evidence before the court on the complainant’s state of mind further evidence that she had engaged sexually with the defendant’