Admiral Byng was a royal navy officer who failed to relieve a besieged British garrison in Minorca during the Seven Years War. As a result, he was sentenced to death and shot by firing squad. In Candide, Voltaire satirised the justification for the execution of the almost certainly blameless Byng on the basis that “it is good to kill an admiral from time to time, pour encourager les autres.”
The point of this story is that it is immoral for the state to use individuals as a means to an end, even if that end, the defeat of the French, is a good one. If human rights mean anything at all, it is that. This is so even if the good end one seeks is itself more justice in the world.
Legislators, from wherever on the political spectrum, tend to have a different perspective from judges in this regard. A legislator tends to think in terms of the common good. They are concerned with how things will turn out best overall. A judge, by contrast, tends to be concerned to ensure justice for the individual(s) before her. As Admiral Byng demonstrated, these perspectives may be in tension one with another. The frustrations in government of both left and right with the constraints of the Human Rights Act comes from the same source.
The acquittal of the footballer Ched Evans at his retrial for rape has proven controversial, with some claiming that it sets a dangerous new precedent in cases of sexual violence. The case is insightfully discussed by legal bloggers here and here, and those unfamiliar with the circumstances of the case are advised to start there.
The result has been a letter to the Attorney General by a number of Labour MPs seeking to change the law. Here I wish to explain why their proposals are misguided.
Sub-section 41(1) of the Youth Justice and Criminal Evidence Act 1999 provides.
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.
The purpose of this section was to restrict the evidence going to the jury because of the persistent myths that “unchaste women are more likely to consent to intercourse, and are less worthy of belief.”
The section does allow of some narrow exceptions, importantly for our purposes sub-section 41(3)(c), where
it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—
(i)to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
(ii)to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
that the similarity cannot reasonably be explained as a coincidence.
But such evidence is not to be adduced to impugn the credibility of the complainant as a witness.
On its face this provision does not permit the admission of evidence of a prolonged period of cohabitation between complainant and accused for years beforehand (“at or about the same time”). If the natural reading of the words were given effect, they would have the effect of violating the defendant’s right to a fair trial under the Human Rights Act. When the issue of this conflict came before the Judicial Committee of the House of Lords (the forerunner to our current Supreme Court) Lord Steyn stated that whilst section 41
pursued desirable goals, the methods adopted amounted to legislative overkill.
The court took the “bold” step of reading section 41 as compatible with the Human Rights Convention by inserting an ” implied provision that evidence or questioning which is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible.” (As an aside, I do not think this was a “reading” of the legislation that was permissible within the possible range of meanings of the words in the Act. What the judges have in fact done is re-written the Youth Justice and Criminal Evidence Act and made it subordinate to the earlier Human Rights Act. The court should instead have made a declaration of incompatibility.)
In the Ched Evans case, two witnesses came forward each of whom said they had had sex with the complainant in circumstances similar to those Evans had described to the police when interviewed in 2011. This, the defence said, was relevant to whether she in fact consented on this occasion. The difficulty arises in relation to the meaning of “similar behaviour”. All that the section requires is that it “go beyond the realm of what could reasonably be explained as a coincidence.” It does not need to be unusual, rare or bizarre. It is a question of judgement whether the evidence on this occasion was sufficient, and the circumstances of its being obtained sufficiently trustworthy, so as to be of probative value. That is a matter for the finder of fact: the jury.
Intentions of Parliament
In their letter proposing a change to the law, the MPs argue that the Court of Appeal have failed to give effect to the intentions of Parliament. It is stated that only evidence that was “unusual or bizarre” was ever intended to be admissible. In support of this claim a statement by Lord Williams of Mostyn, then the Attorney General, in Parliament in promoting the Bill is relied upon, where he said the section
“might include something….so unusual that the jury should know that the complainant had consented in strikingly similar situations in the past.”
Is what Lord Williams said in 1999 relevant, as is claimed?
Nowadays, we do sometimes allow statements of minsters to be admitted for purposes of construing a statute under the rule in Pepper v Hart. It is very important to understand the limited role such evidence has. What we are concerned to discover is the meaning of the words of the Act. The subjective intentions of those Parliamentarians enacting the Act are neither here nor there. We don’t care what Lord Williams himself thought the words meant. We are concerned with what they mean. The meaning of words is however always determined by its context. “Warning! Duck!” may mean that you need to lower your head on a ship, or alert to avian aggression in a bird sanctuary: it depends on the context. In legislation, part of that context includes the words of ministers in promoting a Bill.
Is Lord Williams’ statement enough to add in a “bizarre or unusual” limitation to the words where they do not appear, as is claimed? Clearly not. He merely gave this as a non-exhaustive example of what the words covered, and nothing he said sheds such startling new light on the context of the words so as to alter their natural meaning.
Should the law be changed?
Should we change the law so as to only permit “bizarre or unusual” evidence? If this were done, the law of evidence would clearly violate the Human Rights Act. After all, long term sexual relationships are (now) admissible under s 41(1)(c)(ii) and these are hardly “bizarre or unusual.”
Over several decades successive governments have changed our rules of evidence, for example relating to hearsay or bad character, in a way that favours the prosecution. We now tend to favour allowing the jury to make up their own minds. Here the argument goes the other way.
Parliamentarians tend to be interested in justice in the aggregate, in particular securing more convictions of criminals. So, we are told that “Parliament must send a clear message to victims of sexual violence that no matter their history or background the law in the UK (sic) is there to protect them from harm.”(The criminal law is a devolved matter.) No doubt it should, but it should not do so in a way that would violate the rights of the accused to a fair trial. Politics of both left and right is still unfortunately dominated by a Benthamite utilitarian calculus, with the dispute being about how the ledger on either side is to be calculated. The individual being used disappears from view.
We can think of hypotheticals where we may be prepared to sacrifice the rights of an individual for a much larger greater good (the death of an innocent to save the world). However the case for doing so must be supported by clear and overwhelming evidence, which here is missing. We should be sceptical of those who suggest change only after the result of a trial they dislike, and not after the decision several months earlier of the Court of Appeal as to the admissibility of evidence. Scaremongering as to the ease of use of this evidence is, at a minimum, counter-productive.
Ched Evans is not a very appealing character, but human rights are not just for the virtuous.