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The issue which resulted in the case reaching the House of Lords arose when Counsel for the defendant sought leave to cross-examine the complainant regarding the alleged previous sexual relationship to provide evidence to support the defendant’s defence of his belief in consent.

Relying upon s41 of the Youth Justice and Criminal Evidence Act 1999, the trial judge ruled whilst the complainant could be questioned regarding sexual activity relating to the defendant’s friend, she could not be questioned regarding previous sexual relationship with the defendant.

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Mc Glynn held there was no contravention of the defendant’s right to a fair trial; the defendant’s defence was his belief in consent but consent must be given afresh on each occasion of sexual activity[11].

There thus was no logical basis to admit sexual history evidence under s41.

6 right of the defendant, and the complainant’s right not to be subject to humiliating questioning.

Noting non-consent is an essential element to be established, the defendant must be afforded the opportunity to cross-examine, and submit evidence on that issue: that is an ‘essential element of his right to a fair trial’[7].

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