s.41 Youth Justice and Criminal Evidence Act 1999

Yes this does give rise to a fierce and unremitting debate, but what I am interested in is, quite simply, how on earth does one approach a problem question in an examination? The case law is convoluted and bizzare, to the extent that even our judicary openly admit to not understanding it. :confused:

Tony

Tony, a well-known foot baller, who is allegated to have raped cock waitress, Ginny, at the London Hotel he is staying over night. He claims that G was in her room of her own accord at 11pm and they had consensual sex.

Ginny says she visited his room to get to know him but she had no wish for sex. She claims he tore off her clothes and raped her.

Suppose

Tony alleges that they had consensual sex when he stayed at the same hotel six months earlier.

Clear that:

The principal issue raised by Scenario is the relevance and admissibility of prior sexual history evidence between the complainant and defendant

But in R v. A (HL) they had a sexual relationship that ended only a week ago.

So the interpretative obligation as under section 3 in relation to section 41(3)(c) not much good here. Hardly took 'place as part of event' three months ago.

May-be one goes down root of mistaken belief of consent as in R v. A (no 2) if this evidence is to be admissible. Sorry I just read this for the first time, and we are not doing for 3 weeks, but I want it sorted now.

I do hate it when there is no direct authority and one has to weight it up, actually use some intellect and flair. Suggestions on a post card.

Laura :redface:

Not cheating exam subject

Reply 1

Rhadamnthus1982

Okay a gut response- apologise for mental working out but don't have materials with me

1/ It's within s41 becuse it is past sexual acts.

2/ R v Mukodi- impossibile to define sexual behaviour but don't think there is much doubt here.

3/ s43 (3) a could be argued- that the acts before gave an understanding that led to a belief in consent. Not happy with this though.

4/ R v A would seem to preclude s41 (3) (b)

5/ secton ...(c) is a possibility it would simply go to a discussion of the similairty test- as usual the Act is usless- R v Tahed may be useful

6/ ss(d) is out

Then of course there's the justice requirement.

Hope this helps- if (likely) it doesn't sorry!

Reply 2

Lady Narcissus

its my start to subject, but after reading article by Temkin about it all, I think that seems a plausible start. Cheers for your help

Reply 3

Lady Narcissus

oh god about a load of ambigious crap, yes go Prof Birch lets ditch it.

Honestly, one could be forgiven for confusing

s41(3)(b) taken place at same time

and s.41(c) about took part as part of the of the event

(unless I am thick, they seem similar and confusing)

I do beleive that s42(b) wins the day, the fact she willingly had sex before, if proved, would give him a 'mistaken belief as to consent'