Previous sexual behaviour. Sections 41 to 43 of the Youth Justice and Criminal Evidence Act 1999 impose wide restrictions on evidence and questioning about the sexual history of a complainant in a sexual offence case. The legislation is intended to offer such complainants better protection against unnecessary cross‐examination on their sexual behaviour; to provide a more structured approach to decision‐taking; and to set out more clearly when evidence of previous sexual history can be admitted. Evidence of previous sexual behaviour (defined in s 42(1)(c) of the 1999 Act) can only be adduced if the court grants leave pursuant to an application made in accordance with pt 36 of the Criminal Procedure Rules (as inserted by the Criminal Procedure (Amendment No 2) Rules 2006 (SI 2006/2636) ).
Under s 41 of the 1999 Act, courts may now only grant such leave if: the evidence or questions rebut evidence led by the prosecution; or the evidence or questions relate to a relevant issue at trial and that issue is not one of consent; or if the issue is one of consent, the behaviour to which they relate is either alleged to have taken place at or about the same time as the alleged offence; or is so similar to the complainant's alleged behaviour at that time that it cannot reasonably be explained as a coincidence. The court must also be satisfied that to refuse leave would result in the jury, or the court, reaching an unsafe conclusion on a relevant issue at trial. The courts will also refuse permission if they believe that the real main aim of evidence claimed to relate to a relevant issue is simply to undermine the complainant's credibility.