A Practical Guide to Applications Under Section 41 of the Youth Justice and Criminal Evidence Act 1999

Efforts to improve conviction rates in cases involving sexual offences have led to a plethora of changes in the Criminal Justice System in recent years including the use of special measures, pre-recorded cross examination and restrictions on evidence of sexual behaviour by complainants. These restrictions, introduced by s.41 of the Youth Justice and Criminal Evidence Act 1999, can significantly affect the landscape of a trial. It is vital, therefore, that practitioners understand the law, disclosure implications and procedure behind this complex area of law.

This book endeavours to assist those who conduct cases involving sexual offences by exploring the law and procedure of section 41 applications including the interplay with section 100 of the Criminal Justice Act 2003 where there have been previous allegations by a complainant. It is designed to provide practical assistance by acting as a nutshell guide to section 41 and provides a practitioner check list for prosecution and defence counsel for cases involving section 41 applications.

CONTENTS

Chapter 1: An Introduction to Section 41

Chapter 2: When Does Section 41 Apply and What Is 'Sexual Behaviour'?

Chapter 3: Gateway 1: A Relevant Issue Other Than Consent

Chapter 4: Gateway 2: Consent and Contemporaneity

Chapter 5: Gateway 3: Consent and Similarity

Chapter 6: Gateway 4: Rebuttal and Explanation

Chapter 7: Restrictions on Admissibility

Chapter 8: Previous Allegations

Chapter 9: Procedure for Making a S.41 Application and Counsel's Responsibilities

Appendix A: Counsel's Responsibilities Checklist

Appendix B: 41.- Restriction on evidence or questions about complainant's sexual history