Stricter safeguards for sexual offences evidence

It sets out a series of proposed reforms this week to help protect complainants while maintaining a fair trial, in a landmark report, ‘Evidence in sexual offences prosecutions’. The report, its final recommendations to the government, builds on responses to its 2023 consultation paper of the same name.

Under its proposals, judges would be required to consider the complainant’s rights and the risks associated with certain evidence when deciding whether to allow it in court. There would be an enhanced relevance threshold for a complainant’s personal records, including counsellor records—it must be likely to be relevant to an issue at trial or the competence of a witness to testify, and access must be necessary in the interests of justice. The judge would be assisted by a code of practice and guidance.

Evidence of the complainant’s sexual behaviour would be prohibited unless it has ‘substantial probative value’ relating to a matter which is of ‘substantial importance’ in the context of the case as a whole, and admission would not ‘significantly prejudice’ the administration of justice. The judge would be required to consider factors such as the risk of relying on myths and misconceptions regarding the complainant’s credibility, consent and moral worth or of subjecting the complainant to humiliating questioning.

The Law Commission would also give complainants a right to be heard, assisted by independent legal advice and representation, when asked to produce personal records or sexual behaviour evidence, and they would be entitled to pre-record evidence or be shielded by a screen in court. It would introduce mandatory training for legal practitioners on rape myths and professional misconduct consequences, and guidance for judges on the use of rape myths in cases.

Finally, it recommends creating specialist courts for serious sexual offences trials, with juries continuing to be used.

Criminal Law Commissioner Professor Penney Lewis said: ‘Our package of reforms aims to increase understanding of consent and sexual harm and to address the myths that can undermine justice in these cases.’