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Youth justice and criminal Act 1999 (Essay Sample)

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Section 41 of the Youth Criminal Justice and Evidence Act 1999 is a contravention of the Human Rights Act 1998 and provisions of the European Commission on Human Rights. Though it serves a noble cause of protecting complainant’s privacy and credibility during a rape or sexual assault trial, it infringes on the rights of a defendant to affair trial to a great extend. Though the act provides four main gateways that can allow evidence of a complainant sexual history, there is a lot of evidence that does not fall within those gateways which judges have found relevant for fair administration of justice . Research has shown that many judges have been ignoring s41 while determining rape and sexual assault cases. This implies that they have found the legislation to be an impediment to fair delivery of justice. R v A is a landmark case where the potential of the legislation to impede the right of a defendant to a fair trial was exposed . Several other cases have highlighted the importance of evidence of the sexual history of the complainant, especially evidence that falls outside the four gateways provided by s41. Therefore, this legislation which gives the complainant undue advantage over the defendant in a rape or sexual assault trial is flawed because it infringes on the defendant’s right to a fair trial as provided for by the Human Rights Acts 1998 and provisions European Commission of Human Rights of trial to a great extent.

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Introduction
Article 6 of the European Convention on Human Rights states that all people are entitled to a fair trial. One of the provisions of this article is the right to examine or to have a witnessed examined against them and also obtain examination of witnesses on their behalf under the same situation or conditions as witnesses against them. However, there are feelings that section 41 of the Youth Justice and Criminal Evidence Act of 1999 violates this important provision. In 1997, the government moved with speed to implement of its pre election pledges, that of providing greater protection to sexual assault and rape victims during trial. This led to the creation of the Youth Justice and Criminal Evidence Act in 1999. The intention of this legislation was to create a more structured approach to judicial decision making. However, the Home Office made recommendations contained in Speaking Up for Justice that led to the introduction of the Section 41 of the Youth Justice and Criminal Evidence Act . The paper will start with an analysis of the main provisions of section 41 of the YCEA. It will then detail and analyse several cases that illustrate how the section violates the right to a fair trial of a defendant, before making a conclusion
Section 41 of the Youth Justice and Criminal Evidence Act
Section 41 was born out of the YJCEB of 1998/1999. The main aim of section 41 is to protect a complainant in a trial that involves sexual offenses. It provides a structured approach to the discretion of judges and even clearly points out the circumstances in which evidence of previous sex history is admissible in a rape trial. The most relevant section is Chapter 3 which restricts questions or evidence about the sexual history of the complainant. Subsections 2-6 of the Section 41 set out the conditions or circumstances in which courts can questions to be asked or evidence to be admitted regarding the sexual behaviour of a complainant in a rape or sexual assault trial. According to these subsections, a court can only allow evidence about the complainants past sexual history of questioning regarding her past sexual history if the evidence or questioning is related to any issue that needs to be proved in the case, other than whether the defendant had the consent of the complainant. Secondly, a court can only allow evidence or questioning of a complainant if the issue at hand relates behaviour that occurred as part of the alleged crime or almost the same time as the offence, mostly, 24 hours before or after the offence. Questioning or evidence can only be allowed if the issue at hand is whether the complainant had consented and the questioning or evidence relates to some behaviours that are so similar to the version of the complainant behaviour given by the defence, at the time of the alleged crime as it was established in R v Tissington . Questioning or evidence can only be allowed if the defence is introducing information meant to dispute or explain the evidence given by the prosecution about the behaviour of the complainant as it was in R v Martin. The section also insists that before any evidence of sexual behaviour is introduced, the court must be satisfied that if the evidence is not introduced, the magistrate or the jury might end up making n unsafe decision on an issue that needs to be proved in the case. Subsection (6) of s41 requires such evidence to relate to specific instances of sexual behaviour. In subsection 4 of s4, there are provisions that if the defence wants to introduce evidence or questioning that it claims is related to an issue that needs to be proved in the case, but the court feels that the main purpose of the evidence is to compromise or undermine the credibility of the complainant. The court should not allow such evidence or questioning. The section also envisages that any evidence that does not show that the complainant has a history of making false or unproved complaints of sexual offences against her would not be treated as evidence of sexual behaviour as it was illustrated in R v Beedle.
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Section 41 and right to a fair trial
Section 41 introduced a new regime to guide the conduct of sex offence trials. The section came into operation in December 2000 and brought sweeping changes to the law and rules on admissibility of evidence about the sexual behaviour of a complainant. The main aim of section 41 is to protect a complainant in a trial that involves sexual offenses. It provides a structured approach to the discretion of judges and even clearly points out the circumstances in which evidence of previous sex history is admissible in a rape trial. Section 41 of the Youth Justice and Criminal Evidence Act disallows any cross examination or evidence from the defendant or on behalf of the defendant about any sexual behaviour of the complainant. The intention of section 41 of this act is to restrict usage of sexual history evidence. Therefore, questioning the sexual behaviour in such a case has also been restricted. This change in admissibility of evidence has a fundamental impact on the position of an accused person during trial. The main reason why section 41 was introduced was to reduce the level of usage of complainant sexual history evidence in rape trials. This was meant to protect complainants from intrusions that would go against their right to privacy and also reduce their harassment and humiliation when being questioned in court. When this section was introduced, it also restricted judicial discretion with certain categories of admissibility a situation that would prejudice the defendant. If the main aim of section 41 of the YCJEA act was to safeguard the complainant from intrusion of privacy and harassment during questioning, it can also be concluded that the section was also introduced to prevent some relevant truths about the complainant sexual conduct from being used as evidence in a trial. While trying to exclude irrelevant evidence from being used in the trial, the act also locks out relevant evidence which ends up giving the complainant an advantage over the defendant in the trial. Therefore, S41 is completely incompatible with the provisions of right to a fair trial.
Weaknesses of s41 with regard to Right to Fair Trial
S41 replaced a judicial precedence that used to rely on broad judicial discretions that had tightly drawn admissibility categories with a view of protecting complainants from unwarranted intrusions into their private lives. The measures introduced by s41 are draconian and lead to prejudicial application of the law. The section greatly restricts defendants from using evidence of the sexual history of the complainant in a manner that creates serious problems for a fair trial. This is because it does not give an overriding judicial discretion to enable judges decide which evidence to allow and which not to allow. The section seems to discredit the relevance of the sexual history of a complainant in a rape or sexual assault trial. This limits the range of resources the defence of a complainant can use in such a trial, compromising their ability to get a fair trial as it was established in R v Andre Barrington-White. S41 also puts judges in a tight corner. It does not give them a room to manoeuvre during the proceedings, which reduces their ability to seek more radical solutions. S41 undermines the defendant’s right to a fair trial because it limits the wide range of evidence that the jury need to make a safe judgement and prevent an unsafe conviction. The case of R v R illustrates why evidence of sexual history is important in preventing an unsafe conviction. A research carried out by Neil Kibble in 2005 illustrates the many problems that s41 create for judges in their attempt to provide a fair trial. He interviewed 70 judges in England and Wales. The judges were supposed to respond to four scenarios regarding the structure and operations of the section. These scenarios had sexual history evidence in a gang rape situation, with the defendant and a case involving medical evidence. In his findings, Kibble found that most judges disregard s41 because they feel that evidence of sexual history of the complainant is very relevant in a fair trial. Some of the judges took issue with s41 and its attempt to defend the credibility of the complainant saying that preventing evidence to protect the credibility of a complainant does not create a level playing ground. The section helps the complainant to operate from a vantage point while at the same time limiting the range of evidence the defendants defence can use to argue out the case. Whether evidence is relevant or not in a certain case is decision that needs to be left to the judges. Judges do not need to be guided by an act to determine what is relevant or not, because this reduces their level of judicial discretion as it was established in DPP v Morgan and R v Winter
. Therefore, s41 is a restrictive and manipulative legislation that does not give judges a room to manoeuvre and seek solutions that would enhance a fair trial. In the gang rape scenario, Kibble presented a situation where a lady meets men in a bar, and while dancing with them, she suggests that the go somewhere for some fun and this leads to sexual intercourse with them. When asked whether they would allow questioning of the complainant in such a scenario, most judges responded that the questioning should be allowed because this is an extra ordinary case. Questioning in such a case is important to determine whether the lady has a history of leaving clubs with men after chatting up as illustrated in R v Riley. The judges felt that such information would help them to make safe convictions.
Sexual history of the complainant and Right to a Fair Trial: Case Studies
R v A was the first major case to be decided under the Youth Justice and Criminal ...
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