Formerly, it was a requirement that there be corroboration in a charge of rape or other sexual offence. The Criminal Law Rape (Amendment) Act provided that a Judge had the discretion whether or not to give a warning in relation to convicting without corroboration in sexual offences. The provision was originally enacted in 1981 and was amended in 1990.
In some cases, it may be appropriate for the Judge to warn the jury to exercise caution before acting on the unsupported evidence of a witness. It is a matter for the Judge to decide how strong the warnings should be and in what terms it should be given. No particular form of words is required.
Generally, a person is precluded from giving evidence of prior consistent statements. There is an exception, which developed in the context of the requirement for corroboration in cases of sexual offences. Where a complaint is made, promptly after the alleged assault, etc., this is admissible.
The complaint must have been made as speedily as could be as reasonably expected and on a voluntary basis. It should not be the result of inducement or exhortation. It should be made clear to the jury that such evidence is not evidence of the facts on which the complaint is based but is to show that the victim’s conduct is consistent with present testimony. It does not amount to corroboration but supports consistency.
At common law, evidence might be given of the alleged victim’s sexual history. This was commonly offered as evidence that the victim had consented to the alleged sexual assault or rape.
Legislation in 1990 provides that if at a trial any person is for the time being charged with a sexual assault to which he pleads not guilty, then except with the leave of the Judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial by or on behalf of the accused person about any sexual experiences other than that to which the charge relates of a complainant with any person.
It is provided that the Judge shall not give leave in pursuance of an application, except on an application made in the absence of a jury, by or on behalf of the accused person. The Judge shall give leave if and only if he or she is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked that is to say if he is satisfied that on the assumption that if the evidence was not allowed, the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.
The provision applies only to the defence. The prosecution may offer evidence of the alleged victim’s sexual experience.
Representation of Victim
The Sexual Offences Act 2001 allows the complainant to be legally represented when an application is made to admit previous sexual experience. The cost is covered by the Free Legal Aid Scheme.
The public is excluded from trials involving sexual offences and rape. Officers of the court and persons directly concerned in the proceedings or bona fide representatives of the press may be present.
Video Link Evidence
The Criminal Evidence Act 1992 makes special provisions in relation to a range of sexual and violent offences. They allow for the evidence to be given through live television link, by persons under 18, unless the Court sees good reason to the contrary. More generally, it allows evidence to be given by video link, by all persons with leave of court.
It applies to the trial and pre-trial application for dismissal of charges. Where a trial is being held in an area that does not have video link facilities, there is provision to apply to move it to such an area.
The constitutionality of the provision has been upheld as set out in another chapter. It was challenged on the basis of denying the accused the right to confront his witnesses. The challenge failed in the High Court and ultimately in the Supreme Court.
The 1992 Act allows that in relation to a sexual offence, an offence involving violence or the threat of violence to a person, or an offence consisting of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, those offences person under 18 and on the application of the prosecution others, other than the accused may give evidence through a video link.
If satisfied having regard to the age and mental condition of the witness, the interest of justice required questions to be put through an intermediary, direct that questions be so put.
The intermediary is to be appointed by the Court and is to be in its opinion a person competent to act as such. The question shall be either in the words used by the question or so as to convey to the witness in a way that is appropriate to his age and mental condition. There are limits to the availability of appropriate intermediaries or experts standing appointed.
A video recording of a statement by a child, who is an alleged victim of an offence, may be admissible. The child must be available for cross-examination. The statements are admissible in the same manner as oral evidence. They must be available for cross-examination. There is no requirement that the statement be contemporaneous with the trial.
It is a matter for the jury to weigh the evidence. The prosecution must give prior notice to the defence of its intention to use a videoed statement. The defence must be given the opportunity to see the recording of the interview.
Pre-trial statements may be admitted in cases where witness refuses to testify in context of witness intimidation.