Sexual History Evidence: Compatibility with ECHR art.6

?
What is the key case on this area?
A (no 2)
1 of 15
What happened in A (no 2)?
D was in a relationship with V for 3 weeks, + they had sex about a week before alleged **** on the way to hospital
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A (no 2): does s.41 cover "relationship evidence"? Why/why not?
No it doesn't cover this evidence - because issue is about whether V consented to specific act at specific time with specific D
3 of 15
A (no 2): does prima facie inadmissibility of "relationship evidence" violate art.6?
No (no declaration of incompatibility) but attempt to find a compatible interpretation
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A (no 2): could evidence of sex about 1 week before alleged **** be admitted?
No
5 of 15
A (no 2): what did Lord Hope say about there being a possible infringement?
Where previous sexual behaviour evidence was so relevant to matters of consent that excluding it would endanger safety of proceedings/fair trial
6 of 15
A (no 2): What did Lord Steyn say posed a slight proportionality issue?
S.41 contains identical exclusionary provisions regarding V's sexual behaviour with D + other men
7 of 15
A (no 2): which judge said that evidence of a relationship between C + D will probably be relevant?
Lord Hutton (because it reveals C's mindset towards D)
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A (no 2): what is the key test of admissibility following this case?
Is evidence so relevant to issue of consent that to exclude it would endanger fairness of trial under art.6?
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Who said that the success of this provision was undermined by A (no 2)?
Kelly, Temkin + Griffiths (legislation has been 'evaded, circumvented and resisted')
10 of 15
How do Kelly et al say A (no 2) has translated into practice?
Indulgent approach taken by judges towards cross-examination of complainants, especially where C and D were in a relationship
11 of 15
What other 2 points do Kelly et al make regarding the success of the 1999 legislation?
Conviction rates have continued to fall post-1999, sexual history still comes up r regularly in trials
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In which case was A (no 2) applied and led to conclusion that D would be deprived of a fair trial (previous evidence relationship)?
R
13 of 15
What happened in Harris (which led to evidence being inadmissible as it didn't fall under s.41(3)(c))?
Alleged **** (V was drunk + took 2 men home with her, 1 was a homeless man charged with ****) + V's previous risky, casual sex with strangers
14 of 15
Which provision was held to have a role in all 3 exceptions in Hamadi?
s.3 HRA 1998
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Other cards in this set

Card 2

Front

What happened in A (no 2)?

Back

D was in a relationship with V for 3 weeks, + they had sex about a week before alleged **** on the way to hospital

Card 3

Front

A (no 2): does s.41 cover "relationship evidence"? Why/why not?

Back

Preview of the front of card 3

Card 4

Front

A (no 2): does prima facie inadmissibility of "relationship evidence" violate art.6?

Back

Preview of the front of card 4

Card 5

Front

A (no 2): could evidence of sex about 1 week before alleged **** be admitted?

Back

Preview of the front of card 5
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