VW exam Flashcards
(8 cards)
Question
In achieveing its aim, does s41 hinder D’s rights?
Intro
s41(1) prohibits questioning C’s SB
Interests def - D’s right to confront, C’s right to not be traumatised
s.41 leans in favour of C reflecting social shift, by banning questions on PSH.
Gateways provide exceptions to the prohibition. - provides deleicate balance.
Context (Witnesses)
Sexual behaviour(PSH)??
s42(1)
Mukadi - getting in car was SB
Ben Rejab - sexual quiz was SB
Broad! damage to D?
No! (McGlynn) 1/3 to 2/3 + correlation to aquittals (90%) - Helibron
Gateway 1
s41(5) D can rebut evidence admitted by C but there is a prohibition on bringing in own evidence on C’s SB (s41 (4) (6) )
Gateway 2
s41(3)(a) Reasonable belief in consent.
R v Bahador - stripper dancing is not enough for this! - Narrow!
Hinders D?
No (McEwan) Equivocal behaviour evidence inconsistently demanded.
Gateway 3
s.41(3)(b) contemporaneity
Mukadi - oral sex vs getting in car
R v A No2 of 2002 - Hope and Clyde attempted to extend to 24hrs or more
Broad! - any SB in 24hrs?!
(McGlynn) threatens judicial rape
Gateway 4
s.41(3)(c) - Similarity
Veers into rape myths (criticised by McGlynn)
R v Evans - 3rd parties evidence a month prior to offence - Wide!
Favours D - BUT still have s41(4) and (6)
It is all subject to judicial discretion (White)
For example D cannot use these gateways to admit previous allegations made by C.
They must use bad character gateway which requires a high threshold and evidential basis for proving the allegatin untrue. (MT BH 2001; Hilly)
Otherwise it fosters rape myths
Balance
Gateways:
s41(5) and (3)(a) favour C
s41(3)(b) and (3)(c) Favour D
s41(4) and (6) impose general prohibtion on D’s ability to impugn C.
So on balance in domestic law C is favoured. D has art 6 and HRA s.3 to ensure fair trial though so the sclaes are not too heavily weighted against him.
Overall the balance is good.
