The Section 41 Approach In Sexual Offence Trials Law Essay - Free Essay Example

Sample details Pages: 8 Words: 2324 Downloads: 1 Date added: 2017/06/26 Category Law Essay Type Analytical essay Did you like this example? Historically, the prejudicial effect of rape myths and sexual history evidence has been problematic for the courts in sexual offence trials. In 1999, Parliament enacted s.41 of the Youth Justice and Criminal Evidence Act to place stringent restrictions on sexual history evidence. However, these provisions have caused some difficulties for the courts. While the landmark case of A(2) resolved some of the issues, it will be put that the law remains vexed and, once again, in dire need of reform. A new approach is required which does not exclude evidence from consideration by the jury. Instead, rape myths need to be attacked directly, so they can be eradicated, and their impact neutralized. This discourse will be prefaced by a discussion of the events leading up the 1999 Act, followed by a cursory overview of the approach taken by s.41 in order to highlight some of the primary problems with the legislation. Subsequently, the House of Lords decision in A(2) will b e scrutinized, followed by consideration of some suggestions for reforming the law. Traditionally, the investigation and prosecution of rape and other sexual offences has been rife with difficulties, especially in the area of evidential requirements. Aggressive questioning of female complainants about personal sexual matters was commonplace, and sexual history evidence was considered relevant to consent and credibility. Over time, myths and stereotypes developed which exerted prejudicial effects on the fairness of trials. In R v Riley, evidence of previous voluntary sexual relations with the accused was admissible in order to assert that it was more likely that the complainant consented to the incident in question.  [2] In 1975, the Heilbron Committee considered legislative reforms, examining the impact of sexual history evidence. Their report recommended that it should only be admissible in very limited circumstances, that there should be some limited judicial discretion along with an inclusionary rule based on striking similarity. Unfortunately, when drafting s.2 of the Sexual Offences Act 1976, these proposals were largely ignored. The complainants sexual behaviour with someone other than the defendant should only be referred to when it would be unfair to exclude it, based on the judges discretion.  [3] However, the practical application by the courts was too permissive with too much judicial discretion, resulting in sexual history evidence being admitted too freely.  [4] Amidst growing disquiet, in 1998 the Home Office scrutinized the practical application and the failures of the 1976 Act. The White Paper Speaking Up for Justice exposed numerous inherent weaknesses which necessitated reform.  [5]  This report was criticized by Diane Birch and Neil Kibble for contributing to the shortcomings of Parliaments response in 1999. The YJCEA debates on the draft bill reflected a lack of consensus on the ideal approach to rape shield l egislation, including prevalent concerns about over-restrictiveness and the dangers of excluding relevant evidence.  [6]  The wider jurisprudence was surveyed, including approaches in Australia, Canada, and Michigan. The landmark Canadian case R v Seaboyer  [7]  , where McLachlin J. coined the term twin myths, challenged the provisions of s.276 of the Criminal Code composed of a rule of exclusion with three exceptions.  [8]  Resultantly, the Canadian Supreme Court held that s.276 unconstitutionally violated the right to a fair trial. The impact of these developments played a central role in the YJCEA debates in the UK, as ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒâ€šÃ‚ ¦they were cited as evidence that legislative straitjackets had been attempted and failed.  [9] Parliaments response was s.41 YJCEA 1999, which engendered a more restrictive and structured approach to attacking the twin myths that sexual experience may indicate a propensity to consent and a lack of veracity.  [10]  The aim of the legislation was to strike a balance between protecting claimants from the prejudice of sexual history evidence while securing the defendants right to a fair trial. The blanket rule of exclusion under 41(1) restricts evidence or questions about any sexual behaviour without leave of the court, which will only be granted where both conditions of the two-part test are satisfied; under s.41(2)(a) where either ss.(3) or (5) applies, and the unsafe verdict test, under s.41(2)(b). Any questions or evidence pertaining to the actual incident can be adduced, such as questions about what the complainant said or did before or during the incident, including humiliating questions. Also, anything not about sexual behaviour, and not including sexual history evidence can be adduced. The rape shield legislation targets other sexual behaviour outside the charge, legitimately seeking to exclude sexual history evidence that is not related to the incident. There is a closed list of four narrow gateways (or exceptions) within which evidence may be regarded as critical. Notably, within a matter of days of coming into effect, the legislation warranted a challenge to the House of Lords to consider whether they were broad enough to prevent injustice.  [11] The non-consent gateway may admit evidence pursuant to s.41(3)(a), if it is not an issue of consent, such as mistaken identity  [12]  , honest belief in consent, motive to fabricate, or alternative explanation. The consent gateway, may admit evidence about an issue of consent, which is about sexual behaviour which took place at or about the same time as the subject matter of the charge (res gestae)  [13]  , or it is so similar to behaviour that took place as part of the incident that it cannot be explained as coincidence (similar fact). The fourth gateway applies only when the prosecution has adduced evidence about the sexual behaviour of the complainant, whereby the defence can only go as far as is necessary to enable that evidence to be rebutted or explained.  [14] Upon passing through a gateway and surmounting the two-part test, two further requirements arise. Under s.41(4), questions or evidence intended to impugn the credibility of the complainant are restricted. As well, under s.41(6) evidence or questions must relate to a specific instance of sexual behavior.  [15] These provisions have raised numerous fundamental concerns. Unlike other jurisdictions, the leave requirement does not apply to the prosecution, making s.41 a one-sided rule of exclusion that only applies to the defence.  [16]  Lord Hope recognized the dangerous threat this posed to the equality of arms principle enshrined in Article 6(3)(d) of the Convention.  [17]  For instance, under s.41, the prosecution would be permitted to adduce evidence of the complainants virginity to illustrate that it was unlikely that she consented to the alleged acts. On the other hand, the defence is prev ented from adducing contrary evidence that the she has experience with multiple partners to show that she is more likely to have consented. Allowing one but not the other seems imbalanced, and raises the broader question whether the true rationale for s.41 is on excluding irrelevant evidence or protecting against humiliation of complainants in cross-examination.  [18] The vague definition of sexual behaviour under s.42(1)(c) has resulted in some difficulties,  [19]  though it is considered controversially wider now, since it covers evidence of previous or subsequent sexual behaviour with the accused and with third parties. As will be seen, this was a fair trial flashpoint in A(2).  [20]  Professor Birch has argued that equating the accused with third parties creates the danger of redefining the defendant as a stranger, thereby giving potency to the old myth that real rape is committed by strangers.  [21]  For example, relevant evidence of a previous romantic relatio nship between the defendant and the accused which included sexual relations a few days before the incident in question may be excluded unless it can pass through the narrowly drawn res gestae gateway. If it cannot (and does not satisfy the unsafe test), Thre is no discretion to include it even though it may be highly relevant to the defence case. The restrictive gateways approach has created integral concerns regarding the exclusion of relevant evidence, where its prejudicial effects compromises the fairness of trials. Combined with restrictions on judicial discretion, the shortcomings of using only three fixed exceptions to try and predict every eventuality is exacerbated further. Neil Kibble, in his 2004 report, stated that other jurisdictions like Canada and Australia have already rejected this pigeon-holing approach on the ground that even if judges get it wrong you cant address the problem effectively by eliminating their discretion.  [22] The shortcomings of s.41 reach ed critical mass in the landmark case of A(No.2) which involved a rape trial, where the accused alleged an ongoing sexual relationship with the complainant three weeks prior to the incident in question, with the last occasion being one week prior. The trial judge had sought to admit evidence of the previous relationship as relevant to consent, but was unable to do so through one of the gateways. Thus, following the decision of the Court of Appeal,  [23]  the House of Lords intervened, to examine whether excluding such evidence under s.41 would contravene the defendants right to a fair trial pursuant to Article 6(3)(d) ECHR. One of the touchstone issues identified included the extent to which the defence could refer to matters outside the central facts in order to provide the court with fundamental evidence, the absence of which may result in an unjust verdict. Lord Hutton stated that the right of a defendant to call relevant evidence, where the absence of such evidence may gi ve rise to an unjust conviction, is an absolute right which cannot be qualified by considerations of public interest, no matter how well-founded that public interest may be.  [24] Their Lordships contemplated whether a sexual relationship between the accused and the complainant was relevant to the issue of consent such that to exclude it under s.41 would contravene the defendants right to a fair trial. Reaching a decision required the importation of a residual discretion to decide whether leave should be granted to the defence to adduce evidence of the relationship if it was so central to the issue of consent, that to exclude it would threaten the Article 6 Right to a fair trial. This was achieved by employing s.3 HRA 1998 by reading and giving effect to the similarity exception within s.41(3)(c) in a way that was compatible with Convention rights. Their Lordships qualified their decision by stating that while the aims of the provisions were legitimate, the approach raise d questions about proportionality regarding sexual behaviour with the accused. Thus, it was agreed that such evidence could be sufficiently relevant to necessitate its admission in the interests of fairness. Thus, s.41 was rescued from the clutches of repeal, some residual discretion for trial judges was restored, and the gateways relaxed in the interests of fairness. In some respects, the law seemed come back around full circle to where it was before the 1999 Act, based on fairness tempered with judicial discretion.  [25] However, along with this flexibility came a degree of uncertainty, as it created the danger that the rationale could be broadly applied in any case where the judge adopted the view that fairness under Article 6 may be threatened. Cases such as R v Rooney,  [26]  R v Martin,  [27]  R v R (2),  [28]  and R v White  [29]  indicate how the courts have struggled in the aftermath of A(2). In 2006, a Government White Paper looked at the effecti veness of s.41, whereby National statistical data revealed that s.41 had little or no effect on attrition, while rape conviction rates continued to fall. The report also found that the Crown Court Rules regarding s.41 were frequently ignored or avoided, and recommended that reforms were necessary in order to increase the effectiveness of the legislation.  [30] A way needs to be found to bring rape myths out in the open so they can be eradicated, and their impact neutralized. Diane Birch stated that if juries can only be trusted to adjudicate on cases of rape within relationships by being kept in the dark about the relationship, there is something fundamentally wrong with jury trial.  [31] The law should equip judges and juries with the tools needed to effectively attack rape myths in order to mitigate the prejudice of sexual history evidence, like other areas of law such as bad character have done, with enhanced judicial training and jury directions. Interestingly, Vera Ba ird, QC, the Solicitor-General, recently announced that jury directions are being developed that would instruct juries to ignore rape myths in an effort to increase conviction rates in the UK (amongst the lowest in Europe).  [32] Consideration should be given to amending the current gateways to widen the scope of factors considered, and additional gateways should be added such as implementing a safety-valve type of residual discretion in order to admit evidence falling outside of the exceptions, similar to the approach taken by s.276 of Canadian Criminal Code after the ruling in R v Seaboyer.  [33]  This should reflect a recognition of the value of contextual factors as explanatory evidence, in line with Lord Huttons mindset argument approach in A(2). The culmination of what has been discussed thus far establishes that the aims of s.41 YJCEA 1999 are legitimate, as rape myths have threatened the fairness of trials for centuries. However, it has been argued that the appro ach taken by s.41 does not strike an effective balance between protecting the complainant from the ravages of sexual history evidence versus securing the defendants right to a fair trial under the Convention. The restrictive gateways are incapable of foreseeing every eventuality, and thus create the potential for relevant evidence to be excluded from consideration by the jury. The House of Lords decision in A(2) addressed this issue, and was required to import in some residual judicial discretion in order to resolve the dilemma and prevent repeal of the Act. However, this decision created some uncertainty, which has left the law unresolved and in a muddle. The suggestions for reform center around one underlying theme: the law needs to move towards enabling judges and juries to squarely attack the rape myths, and be able to handle sexual history evidence with the sensitivity required so as to mitigate prejudice while not risking the fairness of trials. A fine balance must be st ruck between the flexibility of some limited judicial discretion and the certainty provided by the legislative restrictions of s.41 in order for the law to operate effectively. The former must not come at the expense of the latter. Don’t waste time! Our writers will create an original "The Section 41 Approach In Sexual Offence Trials Law Essay" essay for you Create order

John Lockes Person Identity - 1651 Words

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Area of Study Guidelines for Business Management and...

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Occupational Fraud A Glance At Asset Misappropriation...

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A Guide to Argumentative Essay Topics about Child Care

A Guide to Argumentative Essay Topics about Child Care So there you are, desperately searching to discover a new and authentic topic. Thus, it's important to read corresponding formatting guide. You may use many examples which can be found on the net at no cost. It is preferable to use templates since they include all necessary formatting elements. Deciding on your topic isn't that easy. Select a topic you could work with. Therefore, the topic ought to be debatable! Now you are prepared to produce your very own argumentative topics. There are invariably a broad range of opinions on the topic of technology, and here are our favourite things to consider on this issue. Such centers are the most wanted places when it has to do with leaving your son or daughter in a protected and a wholesome environment as you receive the privilege to strike a balance with your professional life. If you wish to turn to important topics which impact the whole of society, social issues are really an inexhaustible field. Bear in mind that leaving your child in a child care centre is a complicated task because you may suffer from separation anxiety whenever your child isn't within your sight all the moment. In the event you've wrapped up your primary argument, but you lack the idea about what's next, you own a reason to discover online academic writing service. Our writers use their abilities and abilities to meet the requirements and necessities of our clientele. If you feel you'll hardly succeed making your own topic, consider trying to find good ideas online, at resources that provide useful guidelines on effective essay writing strategies. Our crew of professional writers with the essential experience and writing skills is always prepared to fulfill your demands and exceed your expectations. You may continue to keep your argumentative essays for your upcoming job portfolio in case they're highly graded. Environmental problems, such as climate change, are undoubtedly among the most crucial ones nowadays, and that's why many students are often given the job of writing an academic paper about the surroundings. As an example, in college, you might be requested to compose a paper from the opposing standpoint. You can be totally sure your paper is going to be delivered in time and be of the maximum quality. What You Must Know About Argumentative Essay Topics about Child Care You don't need to acquire super technical with legal argumentative essays, but remember to do your homework on what the present laws about your preferred topic actually say. At times you might require some expert help with argumentative essay topics. It's possible to opt for an intriguing topic from any area of science. Recent argumentative essay topics that are related to society is going to do. The web has made our life a good deal easier. You may search for assorted family topics to compose your argumentative essay on in the event you find it challenging to deal with some family responsibilities. Every citizen ought to have a right for an array of free healthcare services. Also to guarantee all information on the kid is kept in a secure and secure place out of view of the primary classroom. Therefore, it's critically important to make sure children afflicted by abuse are not just protected on the legal level but also provided with adequate mental wellness support and attention. Therefore, in order fight against the challenging situation of child abuse and to receive the acceptable righteousness, it's important to get the assistance and guidance of a seasoned child abuse lawyer New York. The abuse can carry the bodily and mental effect. Drug abuse and addiction by young men and women remain a developing public health issue.

Compare How the Poets Express Their Perspective free essay sample

By the sun being personified as kind and old it creates an image in the readers mind of someone who will help their friend and they imagine that the sun will help bring their comrade back from near death. However, by the sun being personified as old it can suggest to the reader that the sun cannot help their friend, as older people are often unable to help others because they have to look after themselves. In front of this background the act of war and killing seems ridiculous. Mametz Wood also includes personification, and Sheers uses it to personify the Earth as a watchful guardian now the Earth stands sentinel. However, sentinel could also mean that the Earth is watching the human race to see if we are going to do more damage to it. Juxtaposition is used in Mametz Wood to show how disturbed Owen Sheers was. The socketed heads tilted back at an angle suggests that the soldiers could be laughing as their heads we tilted back, although it can show the violent death of the soldiers by their necks being broken, which causes them to die. We will write a custom essay sample on Compare How the Poets Express Their Perspective or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page This shows the disturbance that has been created in Owen Sheers’ mind, and therefore it makes the reader to feel disturbed as well. Futility uses an oxymoron, woke once the clays of a cold star, to show Owens perspective that conflict is futile. Cold star is relating to the Earth however, a star is a ball of hot rock and therefore it cannot be cold. By using the oxymoron, Owen is saying the sun once woke up the Earth, so the sun can wake up his comrade. Mametz Wood shows another of Sheers’ perspective on conflict which is how he thinks war/conflict is futile and brutal. It is clear from the first stanza through the connotations of words that by calling the soldiers the wasted young Sheers thinks war is futile as he describes the dead soldiers as wasted. The use of wasted shows how Sheers thought the soldiers were innocent people whose lives were wasted by fighting in war. The connotations of certain words in â€Å"Futility† also show how Owen perceives conflict as pointless. The words sun connotes warmth and life, and is the center of the poem as the sun wakes up the Earth; however it is not waking up the injured comrade. In the last stanza, the word sleep is contrasted with words that mean wake such as woke. The connotations of words are important because they show how Owen thinks that war is pointless. The poet’s perspectives can be shown through structure and the use of the title. The title of Futility adds to Wilfred Owens perspective of conflict as Futility means pointless, so Owen is showing how he thinks war is pointless and worthless. The title of â€Å"Mametz Wood† is considered to be ironic because the â€Å"wood† is where all of the dead soldiers have been buried, so in a way the â€Å"wood† is a mass grave. Owen Sheers begins Mametz Wood off in the past tense which shows how the horror is still present in the lives of the people, and it also forces the reader to acknowledge what the discovery of the bones means. I think this shows how the past events are still being made aware of the present. â€Å"Futility opens with an instruction move him into the sun- and it is in the present tense, making the poem relevant and immediate. In the last stanza of Futility, the poem ends with a series of rhetorical questions full nerved, still warm, too hard to stir? Was it for this the clay grew tall? which shows that Owen was challenging the whole concept of war and is questioning himself. By questioning himself, Wilfred Owen impacts the reader by making them think about the answers to the questions asked. Rhetorical questions express how Owen perceives conflict as pointless. Punctuation in both poems is used to draw the readers attention to a certain point the poets are trying to make. Hyphens are used in both Futility and Mametz Wood to signal a pause for the readers to think. Mametz Wood uses a hyphen in the line for years afterwards the farmers found them - to let the reader pause and question who them refers to which expresses how Sheers perceives conflict as brutal, because it is clear that many young soldiers died fighting. In â€Å"Futility†, hyphens are also used to let the reader pause and think about what message Owen was trying convey, and they were used on the first line of both stanzas â€Å"move him into the sun -† and â€Å"think how it wakes the seeds –â€Å". Owen uses half rhymes through Futility which give a disconcerting tone to the poem, sun/sown and once/France show this. The use of the half rhymes shows how Owen expresses his perspective that conflict is wrong. Mametz Wood only has two cases of rhyme, the rhyming of gun and run in the third stanza, and in the last stanza sung and tongues. The only two uses of rhyme could suggest that Sheers has had an epiphany at that moment in time. Through this, the reader discovers Sheers perception of conflict which is how he felt disturbed. In conclusion, both poems clearly express the perspective of the poets through lots of different techniques. I personally believe that Futility is more successful in expressing how Owen perceives conflict as futile, however, Mametz Wood creates powerful images that display the brutality of conflict and how Sheers views conflict as brutal.

India-Bangladesh Relations free essay sample

The  non  trade  barriers,  as  pointed  out  by   Bangladesh  Commerce  Ministry,  and  cited   by  the  Daily  Star  include:  2   ? Laboratory   tests   in   Bangladesh,   especially   for   food   products,   cosmetics,   and   leather   and   textiles   products. ? Packaging  requirements   ? Inadequate   infrastructure   facilities   such   as   warehousing,   transshipment   yard,  parking  yard  and  Ã‚   ? Connecting   roads   at   land   customs   stations   also   hinder   exports   from   Bangladesh;   the   land   border   trade   is   subject  to  very  serious  administrative   constraints   in   Bangladesh. The   most   important   of   the   Customs   posts   with   comprehensive   Customs   clearance   powers  is  at  Benapole,  which  borders   Petrapole   on   the   Indian   side   and   which   is   on   main   roads   linking   Kolkata  with  Jessore  and  Dhaka. As   per   the   report   by   Bangladesh   Commerce   Ministry,   trade   barriers   include:3   Sajjadur Rahman, â€Å"Analysts urge India to erase trade barriers to Bangladesh†